Introducing the autonomous employee category: The chance to create a flexible and secure employment relationship?

2021 ◽  
pp. 203195252199085
Author(s):  
Merle Erikson
Keyword(s):  
Working Hours ◽  
Case Law ◽  
Working Time ◽  
Employment Relationship ◽  
European Court Of Justice ◽  
Eu Law ◽  
Autonomous Decision ◽  
Court Of Justice ◽  
European Court ◽  
Working Time Directive

In 2018, the Estonian Ministry of Social Affairs came up with idea of introducing a new category of employee – the autonomous employee – in Estonia. This concept is based on Article 17(1) of the Working Time Directive, which allows derogations from the scope of the Directive for managing executives or other persons with autonomous decision-taking powers. The implementation of the concept of the autonomous employee has been seen as a panacea that makes the organisation of working time more flexible and the regulation relevant to practical needs. However, according to the case law of the European Court of Justice, the scope of Article 17(1) is very narrow. The article examines the concept of the autonomous employee, the nature and organisation of autonomous work, mainly based on EU law, as well as the Finnish Working Hours Act and amendments to the Estonian Sports Act, both of which entered into force in 2020.

National Procedural Autonomy and General EU Law Limits

2019 ◽  
Vol 12 (2) ◽  
pp. 5-34
Author(s):  
Rob Widdershoven
Keyword(s):  
Case Law ◽  
European Court Of Justice ◽  
Eu Law ◽  
Procedural Law ◽  
Court Of Justice ◽  
European Court ◽  
Recent Approach ◽  
Procedural Autonomy ◽  
Judicial Protection ◽  
The Eu

This article examines the recent approach of the European Court of Justice of the EU towards the applicability of procedural national law in cases falling within the scope of Union law. It argues that the Court increasingly assesses such rules within the framework of the principle of effective judicial protection, as bindingly codified in Article 47 of the Charter of Fundamental Right of the EU since December 2009. This test is gradually replacing the rather deferential test on the Rewe principles of equivalence and effectiveness and implies a further limitation of procedural autonomy of the Member States. The reason for the shift seems to be the necessity to coordinate the Court's case law on Article 47 CFR with the case law of the European Court of Human Rights on Article 6 ECHR, because this coordination requires the application of a similar standard by both European Courts. As a result, the importance of, in particular, the Rewe principle of effectiveness, has already decreased to a considerable extent and might decrease further in future. Nevertheless, it is not to be expected that this standard will be abolished completely. First, because it may provide an adequate standard for assessing procedural issues that are not related to effective judicial protection or Article 47 CFR. Secondly, because incidentally it may be used by the Court for modifying national procedural law with a view to the effective application of substantive EU rules.

scholarly journals The turbulent life of the Working Time Directive

2018 ◽  
Vol 25 (1) ◽  
pp. 118-129 ◽  
Author(s):  
Tobias Nowak
Keyword(s):  
Decision Making ◽  
Working Time ◽  
European Court Of Justice ◽  
Decision Making Process ◽  
Member States ◽  
Court Of Justice ◽  
European Court ◽  
The Social ◽  
Social Partners ◽  
Working Time Directive

The case of the Working Time Directive (WTD) is a prime example of a failed attempt by the Member States and the Commission to counter rulings of the European Court of Justice (CJEU) by legislative overrule. Outsourcing the decision making process to the social partners also did not deliver the desired results. After years of trying to reform the WTD, the Commission changed its strategy and issued an interpretive communication instead. However, it is doubtful that this communication will solve all that is wrong with the WTD. What were the obstacles to legislative overrule in this case? What other strategies in avoiding the consequences of CJEU rulings do the Member States apply? What will the future of WTD look like?

11. Free movement of goods II: non-tariff barriers

2020 ◽  
pp. 287-318
Author(s):  
Nigel Foster
Keyword(s):  
European Union ◽  
European Commission ◽  
Case Law ◽  
European Court Of Justice ◽  
Free Movement ◽  
Eu Law ◽  
The European Union ◽  
Court Of Justice ◽  
European Court ◽  
Free Movement Of Goods

This chapter examines European Union (EU) law concerning non-tariff barriers to free movement of goods. It describes member states’ attempts to influence imports and the way the European Commission and the European Court of Justice (CoJ) handled these issues. This chapter explains the provisions of the relevant legislation for non-tariff barriers, which include Articles 34, 36, and 35 of the Treaty on the Functioning of the European Union (TFEU). It also analyses example cases including ‘Dassonville’, ‘Cassis de Dijon’, and post ‘Keck’ case law. It concludes with a consideration of the latest trend of cases concerning product use and residual rules.

scholarly journals The Normative Impact of Invoking Directives: Casting Light on Direct Effect and the Elusive Distinction between Obligations and Mere Adverse Repercussions

2019 ◽  
Author(s):  
Lorenzo Squintani ◽  
Justin Lindeboom
Keyword(s):  
Direct Effect ◽  
Case Law ◽  
European Court Of Justice ◽  
Eu Law ◽  
Reference Procedure ◽  
Eu Directive ◽  
Court Of Justice ◽  
European Court ◽  
Impact Theory ◽  
The Impact

Abstract The main aim of this paper is to cast light on the case law on direct effect of directives, which has remained elusive to both scholars and practitioners. To this end, we first revisit the relevant case law on inverse vertical, horizontal. and triangular disputes to show that the fundamental distinction drawn by the case law is that between ‘direct obligations’ and ‘mere adverse repercussions’. Subsequently, we propose a doctrinal approach to distinguish between ‘direct obligations’ and ‘mere adverse repercussions’ which centres on the impact of invoking a Euorpean Union (EU) directive on the norms governing the dispute. This ‘normative impact theory’ explains all existing case law on the direct effect of directives, and thus aids a better understanding of the concept of imposing obligations on individuals. We compare this theory with other doctrinal theories that have purported to explain the case law, including the well-known distinction between invocabilité de substitution and invocabilité d’exclusion, concluding that the normative impact theory has descriptive and normative advantages over existing approaches. Lastly, we show how the functioning of the preliminary reference procedure has affected the development of the case law on direct effect. We demonstrate that the European Court of Justice (ECJ) applies a presumption that consistent interpretation is capable of remedying incompatibilities between national and EU law. Secondly, we show how the formulation of the preliminary reference can substantially affect, and even confuse, the answer of the ECJ as regards matters of direct effect.

scholarly journals El Tribunal de Justicia de la Unión Europea como actor de constitucionalidad. Repertorio bibliográfico

2017 ◽  
pp. 677
Author(s):  
Ciro Milione ◽  
María Dolores Montero Caro
Keyword(s):  
Case Law ◽  
European Court Of Justice ◽  
Preliminary Ruling ◽  
Eu Law ◽  
Member States ◽  
Critical Studies ◽  
Court Of Justice ◽  
European Court

El presente repertorio bibliográfico recoge diversos estudios (artículos doctrinales, capítulos de libros, monografías, comentarios jurisprudenciales) que han abordado, desde distintas perspectivas, el papel del Tribunal de Justicia de la Unión Europea (TJUE) en el proceso de integración comunitaria. Para facilitar su consultación, esas publicaciones ha sido clasificadas en seis apartados principales: la cuestión prejudicial ante el TJUE; el TJUE ante la responsabilidad de los Estados miembros por el incumplimiento del Derecho de la Unión; el TJUE y los principios generales del Derecho de la Unión; el TJUE en diálogo con otras jurisdicciones; el TJUE y la protección de los derechos en ámbito europeo; la jurisprudencia del TJUE.The present repertoire gathers the various doctrinal contributions (books, chapters, critical studies…) which have analyzed the European Court of Justice (ECJ) from different legal perspectives. In order to facilitate its consultation, the studies are classified in different sections according with its topic. Basically, all the contributions may be included under the ECJ preliminary ruling; the ECJ and member States liability in EU law fulfillment; the ECJ and the general principles of EU law; the ECJ and its dialogue with other jurisdictions; the ECJ’s protection of rights; the ECJ’s case law.

Proportionality and Its Discontents

2020 ◽  
pp. 125-155
Author(s):  
Jan Zglinski
Keyword(s):  
Empirical Analysis ◽  
Judicial Review ◽  
Case Law ◽  
European Court Of Justice ◽  
Free Movement ◽  
Eu Law ◽  
Court Of Justice ◽  
European Court ◽  
Empirical Argument ◽  
Review Model

This chapter focuses on one element of judicial review which is particularly affected by deference: proportionality analysis. It argues that the connection between proportionality and deference is not accidental. Constitutional scholarship has overly focused on the benefits of proportionality analysis for judges. Yet, the test equally creates a series of duties which can become a burden, a burden which courts will try to reduce by resorting to deference techniques. The chapter offers a historical, theoretical, comparative and empirical argument in support of this thesis. It traces the development of proportionality in EU law and compares it with the American ‘standards of review’ model. An empirical analysis of free movement case law reveals that the more frequently the European Court of Justice applies proportionality, the more frequently it opts for deferential forms of scrutiny.

Fighting for Authority: Strategic Actions of National High Courts in the European Union

2019 ◽  
Vol 12 (2-2019) ◽  
pp. 419-433
Author(s):  
Stefanie Vedder
Keyword(s):  
European Union ◽  
European Court Of Justice ◽  
Eu Law ◽  
The European Union ◽  
Principal Agent Theory ◽  
Strategic Actions ◽  
High Courts ◽  
Court Of Justice ◽  
European Court ◽  
Lower Courts

National high courts in the European Union (EU) are constantly challenged: the European Court of Justice (ECJ) claims the authority to declare national standing interpretations invalid should it find them incompatible with its views on EU law. This principle noticeably impairs the formerly undisputed sovereignty of national high courts. In addition, preliminary references empower lower courts to question interpretations established by their national ‘superiors’. Assuming that courts want to protect their own interests, the article presumes that national high courts develop strategies to elude the breach of their standing interpretations. Building on principal-agent theory, the article proposes that national high courts can use the level of (im-) precision in the wording of the ECJ’s judgements to continue applying their own interpretations. The article develops theoretical strategies for national high courts in their struggle for authority.

scholarly journals Characteristics of Precedent: The Case Law of the European Court of Justice in Three Dimensions

2015 ◽  
Vol 16 (5) ◽  
pp. 1073-1098 ◽  
Author(s):  
Mattias Derlén ◽  
Johan Lindholm
Keyword(s):  
European Union ◽  
Case Law ◽  
Three Dimensions ◽  
Eu Law ◽  
The European Union ◽  
European Union Law ◽  
Court Of Justice ◽  
European Court ◽  
Number Of Factors ◽  
The One

AbstractThe case law of the Court of Justice of the European Union (CJEU) is one of the most important sources of European Union law. However, case law's role in EU law is not uniform. By empirically studying how the Court uses its own case law as a source of law, we explore the correlation between, on the one hand, the characteristics of a CJEU case—type of action, actors involved, and area of law—and, on the other hand, the judgment's “embeddedness” in previous case law and value as a precedent in subsequent cases. Using this approach, we test, confirm, and debunk existing scholarship concerning the role of CJEU case law as a source of EU law. We offer the following conclusions: that CJEU case law cannot be treated as a single entity; that only a limited number of factors reliably affect a judgment's persuasive or precedential power; that the Court's use of its own case law as a source of law is particularly limited in successful infringement proceedings; that case law is particularly important in preliminary references—especially those concerning fundamental freedoms and competition law; and that initiating Member State and the number of observations affects the behavior of the Court.

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