Freedom of Contract as a General Principle of EU Law? Transfers of Undertakings and the Protection of Employer Rights in EU Labour Law: Case C-426/11 Alemo-Herron and others v Parkwood Leisure Ltd

The paper considers and comments on the instruments of protection of the fundamental rights of the Union in private law relationships that are in the scope of applicable EU law. Special attention is paid to the influence of fundamental rights of the Union on private autonomy and the freedom of contract in private law relationships depending on whether fundamental rights are protected by national law harmonized with EU law, or by horizontal effects of the Charter of general principles. The goal of the paper is to determine the method in private law relationships that can attain the optimal balance between the protection of fundamental rights of the Union and the principle of private autonomy and the freedom of contract regulated by national law of a member state. The author favors the protection of fundamental rights in private law relationships by applying adequate measures that create indirect horizontal effects of the provisions of EU law on fundamental rights. These concern national measures that can also secure adequate protection of fundamental rights via interpretation and application of national law in line with EU law in private law relationships.

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The Europeanisation of Spanish Administrative Law through the Principle of Legitimate Expectations

Review of European Administrative Law ◽

10.7590/187479820x15930701852256 ◽

2020 ◽

Vol 13 (2) ◽

pp. 55-86

Author(s):

Luis Arroyo Jiménez ◽

Gabriel Doménech Pascual

Keyword(s):

Decision Making ◽

General Principle ◽

Legal Status ◽

Case Law ◽

Administrative Law ◽

Status Quo ◽

Eu Law ◽

National Legislation ◽

Legitimate Expectations ◽

The Eu

This article describes the Europeanisation of Spanish administrative law as a result of the influence of the EU law general principle of legitimate expectations. It examines, firstly, whether the formal incorporation of the principle of legitimate expectations into national legislation and case law has modified the substance of the latter, and if so, secondly, whether this has led to a weaker or a more robust protection of the legal status quo. To carry out that examination, the article considers the influence of the principle of legitimate expectations in two different areas: in individual administrative decision-making, and in legislative and administrative rulemaking. Our conclusion is that the Europeanisation of Spanish administrative law through the principle of legitimate expectations has been variable and ambiguous.

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General Principles of EU Law: The Ghost in the Platonic Heaven in Need of Conceptual Clarification

Pittsburgh Papers on the European Union ◽

10.5195/ppeu.2013.7 ◽

2013 ◽

Vol 2 (1) ◽

Author(s):

Constanze Semmelmann

Keyword(s):

Natural Law ◽

General Principle ◽

Legal Theory ◽

Legal Positivism ◽

Legal Philosophy ◽

Eu Law ◽

Conceptual Clarification

General principles are en vogue in EU law – and in need of conceptual clarification. A closer look at several concepts of principle in legal philosophy and legal theory sheds light upon the concept of general principles in EU law. A distinction between an aprioristic model of principle and a model of principle informed by legal positivism may contribute to clarifying the genesis of a (general) principle in EU law, as well as its nature and functions. This paper demonstrates that an evolution has taken place from a reliance on seemingly natural law inspired reflections of general principles via the desperate search to ground general principles in various kinds of sources based on a more or less sound methodology towards an increasing reliance on strictly positivistic approaches. Against this backdrop, general principles are likely to lose significance where there are other norms while retaining an important yet uncontrollable role where the traditional canon of sources is silent.

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COLLECTIVE LABOUR RIGHTS AS THE PRINCIPLES OF THE EUROPEAN UNION LABOUR LAW

Actual problems of native jurisprudence ◽

10.15421/391954 ◽

2019 ◽

pp. 43-46

Author(s):

O. M. Rym

Keyword(s):

European Union ◽

Collective Bargaining ◽

Case Law ◽

Eu Law ◽

The European Union ◽

Labour Law ◽

Member States ◽

Labour Rights ◽

Social Partners ◽

The Right

The article deals with certain aspects of collective labour rights in the European Union. Prerequisites and procedure of this rights guaranting as general principles of EU law are analyzed and their content is characterized. It is emphasized that such legal establishing took place somewhat haphazardly, both at the level of the acts of primary and secondary law of the European Union and in the case law. As a result, there is no single position on the spectrum of collective labour rights as principles of EU labor law. The author focuses on significant changes in the understanding of the necessity of cooperation of social partners and the extension of their interaction at the supranational level. It is under the responsibility of the European Commission to promote cooperation between Member States and to facilitate coordination of their activities in the field of the right of association and collective bargaining between employers and employees. The article clarifies the content of collective labour rights as general principles of EU law on the basis of EU legal acts, the case law of the Court of Justice of the European Union, as well as the scientific works of domestic and foreign scholars. It is noted that the system of collective labour rights, as general principles of EU labour law, consists of the right of collective bargaining and collective action, the right of employees to information and consultation within the enterprise, as well as the freedom of assembly and association. It is concluded that the necessity of cooperation between the social partners is recognized as one of the foundations of EU labour law. Herewith appropriate interaction is ensured through the normative-legal consolidation of collective labour rights and procedures for their implementation. After all, European Union legal acts allow employees and employers’ representatives to play an active role in regulating labour legal relations. For example, Member States may instruct employers and employees, upon their joint request, to implement Council directives or decisions. In addition, many directives contain warnings about the possibility of derogating from their provisions through the adoption of a collective agreement.

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Tätigkeitsbezug als Sachgrund der Befristung des Arbeitsvertrags

10.5771/9783748905806 ◽

2020 ◽

Author(s):

Christian Roth

Keyword(s):

German Law ◽

Case Law ◽

Eu Law ◽

Labour Law ◽

Assessment Criterion ◽

Employment Contracts ◽

Substantial Modification ◽

Time Work ◽

Part Time ◽

Part Time Work

Based on a new, comprehensive approach, this work places the objective reasons for fixed-term employment contracts in German labour law under intense scrutiny. As a result of the author considering ECJ case law in this respect, a legally certain assessment criterion for every potential objective reason arises: their specific relation to the occupational context. By comparing this criterion with German law (§ 14 (1) of the TzBfG, Germany’s law on part-time work and fixed-term employment) and the case law in this respect, the author reveals the selective need for substantial modification of the law in question. He points out ways and means to deal with those necessary modifications to ensure that the objective reasons for fixed-term employment contracts in German law conform with EU law.

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4. Contractual obligations

10.1093/he/9780198732297.003.0004 ◽

2016 ◽

Author(s):

Jonathan Hill

Keyword(s):

General Principle ◽

Common Law ◽

General Rule ◽

Eu Law ◽

English Court ◽

Applicable Law ◽

Foreign Countries ◽

Contractual Obligations ◽

Governing Law ◽

Rome I

This chapter deals with contract disputes which have foreign elements that come before the English court: one or both of the parties may be foreign; the making or performance of the contract may be connected with a number of foreign countries. In this type of case which law is the court to apply? The general principle is that every international contract has a governing law — known at common law as the ‘proper law’and under EU law as the ‘applicable law’. Subject to certain limitations, parties to a contract are free to choose the applicable law; if the parties fail to make a choice, the governing law is, as a general rule, the law of the country with which the contract is most closely connected. The remainder of the chapter focuses on the Rome I Regulation, including its scope and interpretation; determining the applicable law; the limits of the applicable law; articles 5 to 8; and choice of law aspects of various contractual issues.

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Ch.1 General Provisions, General Provisions I: Arts 1.1–1.3—Fundamental principles, Art.1.1

10.1093/law/9780198702627.003.0005 ◽

2015 ◽

Author(s):

Vogenauer Stefan

Keyword(s):

General Principle ◽

Fundamental Principle ◽

Contract Law ◽

Freedom Of Contract ◽

The World ◽

Mandatory Rules ◽

Technical Sense

This commentary focuses on Article 1.1, which deals with freedom of contract, the most important fundamental principle of contract law for contracts governed by the UNIDROIT Principles of International Commercial Contracts (PICC). Art 1.1 restates a general principle of law in the technical sense; that is, a principle common to the laws of all — or at least most — jurisdictions in the world. All modern contract laws recognize freedom of contract, albeit for different reasons and to varying degrees. Art 1.1 covers two aspects of contractual freedom: the first is the freedom to decide whether to conclude a contract at all, and with whom; the second is the freedom to contract on the terms desired by the parties. Limitations of the freedom to determine the content of the contract follow from mandatory rules of the PICC.

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Whose Autonomy is it Anyway? Freedom of Contract, the Right to Work and the General Principles of EU Law

Industrial Law Journal ◽

10.1093/indlaw/dwz024 ◽

2019 ◽

Vol 49 (3) ◽

pp. 285-317

Author(s):

Niall O’Connor

Keyword(s):

Fundamental Rights ◽

Eu Law ◽

Freedom Of Contract ◽

Legal Studies ◽

Right To Work ◽

Court Of Justice ◽

Charter Of Fundamental Rights ◽

The Right ◽

The Relationship ◽

The Eu

Abstract Just how significant is the freedom of contract found in Article 16 of the EU Charter of Fundamental Rights for the regulation of the employment relationship? For the first half of its existence, few could have foreseen that Article 16 would soon be at the centre of debates surrounding the place of business freedoms within EU employment law. This has changed in the wake of a number of controversial decisions in which the Court of Justice of the EU relied on Article 16 to undermine the effectiveness of employee-protective legislation. The article begins by setting out the nature of freedom of contract in EU law and its effects in the employment context. This is followed by a consideration of the relationship between the general principles and the Charter. Critical Legal Studies is relied on to show that existing arguments as to the use of Article 16 as a radical tool in the employment context have been both exaggerated and underplayed. Finally, potential counterweights to freedom of contract are examined, notably the right to work as both a general principle and Charter right.

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