EU Labour Law Research Articles

Enforcement of EU Labour Law: Legal foundations and the role of the CJEU

Labour law enforcement is crucial for achieving its social objectives, yet it often faces significant challenges in terms of its capacity to ensure the effective protection of labour rights. In the EU context, effective enforcement of labour law is further complicated by the absence of a sectoral, i.e., labour-specific, approach and the challenges in implementing EU substantive rules, often stipulated in Directives. The article assesses the enforcement landscape of EU labour law and particularly the legal foundations and the CJEU's role. Focusing on key enforcement issues, the analysis highlights how the constitutional right to an effective judicial remedy, as interpreted by the CJEU, and the inclusion of more comprehensive enforcement provisions in EU Directives are mitigating to some extent the existing fragmentation in the EU regulatory landscape, and concludes with considering future directions in EU labour law enforcement.

The value of formally undefined norms in the national legislation approximation to EU labour standards: The case of Ukraine

AbstractThis paper aims to show the importance of a correct understanding of formally undefined EU labour law norms for the successful European integration of Ukraine. The analysis focuses on legal acts of the European Union. The drawbacks of the inequality of approaches to determining the content of norms with evaluative concepts are highlighted, as is the need to use doctrinal recommendations for the application of evaluative provisions with the purpose of preventing the misconception that evaluative concepts can be interpreted as, and to whom, it pleases. This article thus demonstrates the necessity of the analysis of the case-law of the Court of Justice of the EU, which is rich in the interpretation of evaluative concepts and is considered to help clarify the meaning of many terms of labour law, which, due to their undefined formulation, may cause difficulties in implementing them in the legal system of Ukraine.

Effective enforcement of the EU framework on the posting of workers: Empirical evidence

This article addresses the issue of effective enforcement of EU labour law by looking at the case study of the enforcement of the EU framework on the posting of workers. While recent years have seen a revival of Social Europe in the form of the European Pillar of Social Rights, scholars have also expressed concern over the effectiveness in practice of transnational labour law, and EU labour law in particular. Rasnača (2022) argues that ineffective enforcement creates a ‘justice gap’ between formal rights on paper and access to these rights in practice. One example of an area of EU labour law plagued by enforcement issues is the posting of workers. It is a peculiar type of intra-EU labour mobility, where posted workers, despite often being EU citizens, cannot benefit from the protection afforded by the EU's fundamental principle of the free movement of workers. As the original Directive 96/71/EC on the posting of workers proved manifestly inadequate to safeguard the rights of posted workers, the EU enacted Directive 2014/67 to improve the framework's enforcement. This article offers an evaluation of the Enforcement Directive based on data collected from 29 qualitative interviews. The effectiveness of the Enforcement Directive will be assessed based on the theoretical framework of precarious work. It will be argued that while the Enforcement Directive has contributed to narrowing the justice gap, posted workers continue to be exposed to precarity.

Not Delivering: the UK ‘worker’ concept before the UK Supreme Court in Deliveroo - IWGB v CAC and another [2023] UKSC 43

The present article offers an analysis of some key aspects of the UK Supreme Court (SC) Deliveroo judgment. After a short description of some of the facts and findings of the case, the article argues that the Supreme Court may have actually misconstrued the personal scope of application of Article 11 ECHR and, like the other domestic jurisdictions before, misapplied the law (and the concept of ‘employment relationship’ deployed by the ECtHR) to the facts of this case. While the SC judgment did not expressly elaborate on the domestic ‘worker’ definition contained in s. 296 TULRCA 1992, the article explores the extent to which the Deliveroo saga has incorrectly construed this concept, embracing a very narrow concept of ‘personal work’ that neither the statutory wording itself nor the context in which it was applied arguably support. Finally, the concluding section of this article offers an alternative approach to the legal construction and legal regulation of ‘personal work’, one that is already emerging in other jurisdictions and that should underpin any future reform of the personal scope of application of UK, but also EU labour law - a reform, the article concludes, that is long overdue.

Under what conditions do volunteers escape being qualified as workers?

This contribution looks at the status of volunteers in EU labour law taking into account the criteria of the CJEU's Lawrie-Blum formula. It demonstrates, in light of the jurisprudence of the Court, that some criteria may be problematic and that a purposive approach may provide adequate solutions.

Voluntary work in the Italian experience: the curious case of ‘socially useful workers’

The demarcation of the personal scope of application of EU labour law results from the interplay between national legislation and the CJEU case law. This article analyses the particular case of socially useful workers in the Italian legal system and questions its compliance with EU law. It does so by exploring an intricate legal framework and the relevant interpretation by domestic and European adjudicators.

Towards Workers’ Environmental Rights: An Analysis of EU Labour and Environmental Law

Towards Workers’ Environmental Rights: An Analysis of EU Labour and Environmental Law

The approach of EU labour law in redressing the problems of working parents and carers

The conflict between employment and family responsibilities, that is, private life in general, is regarded as one of the most pressing concerns of labour law over an extended period. In the context of increasing participation of women in labour markets, ageing of the population and changes in the archetypal forms of employment relationships and families, the issue of reconciling work with family life, i.e. maintaining the work-life balance, affects all social actors: workers, employers and governments. In light of this, the paper first analyses the EU policies and legislative measures related to the special protection of women in relation to pregnancy and maternity, including the right to maternity leave. Additionally, it addresses the special rights of working parents, including the right to parental leave for both men and women workers. Finally, the paper looks at the most recent EU Directive on Work-Life Balance of 2019, providing a critical review of both the newly introduced rights in the Directive, such as paternity and carers’ leave, and the already established rights of parental leave and flexible working arrangements.

EU social policy and the subsidiarity principle: The end of an illusion?

Social policy at the EU level remains a notably limited enterprise. The Union appears unable to address social inequalities without treading into politicised areas of national decision-making, since intervention in the social domain touches upon core questions of national identity, sovereignty and democracy. In this article, I explore the fraught relationship between EU social policy and the principle of subsidiarity, which has frequently served to legitimate support for as well as opposition to supranational action in the social domain, even when and where the Union has well-defined competences to legislate. The article engages in a conceptual analysis of the implications of subsidiarity for EU social policy and labour law, illustrated with a case study that examines usages of the principle by different institutional actors in recent debates on EU social directives. While it clearly provides a convenient rhetorical instrument to political actors, I argue, the concept of subsidiarity fails to serve as an organising principle for the multilevel governance of social and labour policy. Scholarly and policy debates on the constitution of a more social Europe are therefore best oriented away from the language of subsidiarity and should focus instead on effective and democratically legitimate ways of delivering the social promises of both the EU and its Member States.

Book Review: Effective Enforcement of EU Labour Law, Edited by Zane Rasnac?a, Aristea Koukiadaki, Niklas Bruun and Klaus Lörcher. (Oxford: Hart Publishing, 2022)

Book Review: <i>Effective Enforcement of EU Labour Law</i>, Edited by Zane Rasnac?a, Aristea Koukiadaki, Niklas Bruun and Klaus Lörcher. (Oxford: Hart Publishing, 2022)

(Correct) Calculation of Payment During Annual Leave and Allowance in Lieu of Leave not Taken in the Public and Private Sectors and the Impact of the Case-law of the Court of Justice on the Decision-making of the Slovenian Courts

The example of the case-law evolution of the Court of Justice (CJEU), concerning the correct interpretation of the requirement of “normal remuneration” to be received on basis of Article 7(1) of Directive 2003/88/EC during the period of annual leave and the corresponding allowance in lieu, the challenges of Slovenian courts, confronted with a rather static domestic and EU labour legislation, will be presented. Annual leave is a fundamental right of every worker in the EU, be it in private or public sectors, so its regulation on both legislative levels should be enacted with great precaution. It will be further presented that due to the implicit supranational and autonomous nature of the EU law it is nigh to impossible for the national legislators to regulate all aspects of this fundamental right as both levels of legislation “do not speak the same (normative) language”, especially with the CJEU as a constant interpretative “interloper”. In absence of uniform EU labour law interpretative alignment can only be asserted by the continuous efforts of the national judiciary.

The Effective Enforcement of EU Labour Law

The Effective Enforcement of EU Labour Law

Offering false security: How the draft artificial intelligence act undermines fundamental workers rights

In April 2021, the European Commission published its first draft of the Proposal for a Regulation on Artificial Intelligence. Since AI in the work context has increasingly become important in organising work and managing workers, the AI Act will undoubtedly have an impact on EU and national labour law systems. One aim of the proposal is to guarantee ‘consistency with existing Union legislation applicable to sectors where high-risk Artificial Intelligence systems are already used or likely to be used in the near future’, which includes the EU social acquis. It could be argued that ensuring true consistency with EU law means guaranteeing that the way the AI Act will be implemented and applied will still allow the other pieces of EU labour law to fulfil their purpose. It is undeniable that the implementation of the AI Act will overlap with various fields of EU law, especially considering the increasing use of AI technology at work. Thus, this article seeks to identify ways to refine the AI Act, insofar as it impacts work. The contribution discusses the current AI Act as proposed in April 2021, thereby focusing on two particular areas, EU non-discrimination law and EU law on occupational health and safety (OSH), as these two areas are, more or less explicitly, addressed as legal fields in the AI Act. The article starts with taking the perspective of EU labour law influencing the development of AI systems used in the employment context. We argue that providers should respect EU labour law throughout the development of the AI system (section 2). Then, the areas where EU labour law and the AI overlap are identified, thereby viewing it from an employer's perspective, i.e., the user of the AI system (section 3). Using two specific EU labour law areas (the right not to be discriminated against and the right to healthy and safe working conditions) the article provides a first assessment of how the AI Act might influence work and the regulation thereof (section 4). Finally, the conclusion critically explores whether and to what extent AI in employment situations warrants particular attention (section 5).

Reasonable accommodation beyond disability and the concept of vulnerability in Europe

The article addresses the provision of reasonable accommodation within the context of the European Union, in particular within EU labour law. Specifically, the provision of reasonable accommodation is enshrined within the framework provided by non-discrimination law. Furthermore, the article introduces the concept of vulnerability which represents a new and pioneering category especially in legal studies. The research question wonders whether it would be feasible to expand the provision on reasonable accommodation beyond the ground of disability considering vulnerability as an encompassing category to be used in order to evaluate whether a reasonable accommodation can be required or not. To this aim, it has to be noted that disability is the only ground based on which a reasonable accommodation can be provided under the EU law.

Introduction: The EU new economic governance, labour law and labour lawyers

The new economic governance of the European Union emerged as an important legacy of the Eurozone crisis. Although its suspension during the COVID-19 pandemic has somewhat reduced its visibility, the process of the European Semester remains as central as ever in coordinating socio-economic policies of Member States, notably through its link with the Recovery and Resilience Facility. Two of the most relevant tools of the EU Economic Governance, notably Memoranda of Understanding and Country Specific Recommendations, focus, to an important degree, on labour law reforms. As such, it is important to question the role which these instruments have played, and will potentially play in the future, for national systems of labour law as well as for the evolution of EU labour law itself. To do so, it is necessary to go beyond quantitative or macro approaches to the content of the prescriptions of these tools, in order to analyse their impact on specific labour law systems and national contexts. This will generate a better understating of the relevance of the EU economic governance for the field of labour law.

A new source for (EU) labour law?

Looking at the instruments of the EU economic governance (Memoranda of Understanding; Country Specific Recommendations) from the perspective of national labour law systems reveals wide differences in their impact. If it is possible to draw a direct link between the demands of a Memorandum and national labour law reforms, the picture is less clear for Country Specific Recommendations. Notably, different Member States show a different degree of ability to ‘resist’ these Recommendations, which appears to be based more on their coherence (or lack thereof) with national political preferences than on the specific situation of the given Member State when it comes to the corrective mechanisms of the EU economic governance. From the perspective of labour law, these instruments still show little in the way of a more ‘social’ approach. Taken together, these conclusions suggest that the instruments of the EU economic governance could hardly provide a productive contribution to the development and enforcement of EU labour law, risking, on the contrary, leading to its fragmentation due to their uneven impact across Member States.

‘Platformisation’ of work: An EU perspective on Introducing a legal presumption

For some time now, the European Commission has stressed the need to address the ongoing misclassification of employment status in platform work and has thus considered introducing a rebuttable presumption of employment status or a reversal of the burden of proof. This contribution focuses on the benefits and limitations of introducing a rebuttable legal presumption in EU labour law as an evidentiary means to improve the working conditions of platform workers. In doing so, some general remarks on rebuttable legal presumptions will be made, while also offering some comparative legal insights, before exploring their potential benefits and limitations in the context of EU labour law in general and platform work in particular. This contribution will finish with an analysis of how such a presumption could be integrated in the current EU social acquis.

Who is afraid of unions representation? Some considerations on the SAP SE case in the light of EU Labour Law.

Who is afraid of unions representation? Some considerations on the SAP SE case in the light of EU Labour Law.

Collective redress in labour and social law disputes: An (attractive) option for the EU?

Collective redress has a lot of appeal as an enforcement tool, but historically it has been seen as somewhat unfitting for the European legal landscape. Despite this, many EU national legal systems have introduced collective redress mechanisms. The area of EU labour and social law, however, has been slow to catch up with this trend. This article discusses whether collective redress in labour and social law disputes could be an attractive option for the EU. Relying on an analysis of the legal opportunity structure it proposes some ideas on how to advance. All in all, collective redress is no panacea but could potentially complement and improve the EU enforcement toolbox, particularly in areas where there is evidence of persistent enforcement gaps.

The Visualized Employment Contract. An Exploratory Study on Contract Visualization in Danish Employment Contracts

The essence of any employment contract should be aclear and understandable communication of the employment relationship. Usingcomics as a medium for employment contracts can help in achieving this goal.This article provides an exploratory case study in the context of Danish labourcontracts. In the first part, it is assessed whether an employment contractthat contains comic strips would meet the formal requirements of Danish and EUlabour law. In the second part, the textual and comic versions of an employmentcontract of a Danish leisure sport organization are tested on two volunteergroups in an experiment. In this experiment the participants first had toreport on their impression of the contract received (textual or comic) andthen, secondly, had to explain two legal terms and solve two cases based ontheir recollections of the contractual clauses. The results show that both thepersonal utility and actionable knowledge of the users of comic contractsincreased significantly compared to the users of the textual version of thecontract. This provides initial evidence that contract visualization with thehelp of comic strips can be an important component in ongoing reforms of labourlaw aiming at providing workers with more transparency and predictability abouttheir employment relationship.@font-face{font-family:"Cambria Math";panose-1:2 4 5 3 5 4 6 3 2 4;mso-font-charset:0;mso-generic-font-family:roman;mso-font-pitch:variable;mso-font-signature:3 0 0 0 1 0;}@font-face{font-family:Calibri;panose-1:2 15 5 2 2 2 4 3 2 4;mso-font-charset:0;mso-generic-font-family:swiss;mso-font-pitch:variable;mso-font-signature:-469750017 -1073732485 9 0 511 0;}p.MsoNormal, li.MsoNormal, div.MsoNormal{mso-style-unhide:no;mso-style-qformat:yes;mso-style-parent:"";margin-top:0cm;margin-right:0cm;margin-bottom:8.0pt;margin-left:0cm;line-height:107%;mso-pagination:widow-orphan;font-size:11.0pt;font-family:"Calibri",sans-serif;mso-ascii-font-family:Calibri;mso-ascii-theme-font:minor-latin;mso-fareast-font-family:Calibri;mso-fareast-theme-font:minor-latin;mso-hansi-font-family:Calibri;mso-hansi-theme-font:minor-latin;mso-bidi-font-family:Arial;mso-bidi-theme-font:minor-bidi;mso-ansi-language:DA;mso-fareast-language:EN-US;}.MsoChpDefault{mso-style-type:export-only;mso-default-props:yes;font-size:11.0pt;mso-ansi-font-size:11.0pt;mso-bidi-font-size:11.0pt;font-family:"Calibri",sans-serif;mso-ascii-font-family:Calibri;mso-ascii-theme-font:minor-latin;mso-fareast-font-family:Calibri;mso-fareast-theme-font:minor-latin;mso-hansi-font-family:Calibri;mso-hansi-theme-font:minor-latin;mso-bidi-font-family:Arial;mso-bidi-theme-font:minor-bidi;mso-ansi-language:DA;mso-fareast-language:EN-US;}.MsoPapDefault{mso-style-type:export-only;margin-bottom:8.0pt;line-height:107%;}div.WordSection1{page:WordSection1;}