‘Posting’ and ‘Posted Workers’: The Need for Clear Definitions of Two Key Concepts of the Posting of Workers Directive

2012 ◽  
Vol 14 ◽  
pp. 419-451 ◽  
Author(s):  
Aukje van Hoek ◽  
Mijke Houwerzijl
Keyword(s):  
European Commission ◽  
Labour Mobility ◽  
Member States ◽  
Proper Understanding ◽  
Applicable Law ◽  
Key Concepts ◽  
Scope Of Application ◽  
Contractual Obligations ◽  
The Right ◽  
Rome I

AbstractIn this chapter the authors discuss the personal scope of the Directive on the Posting of Workers (Dir 96/71/EC) and the implementation thereof in the Member States. The comparative findings are based on two studies conducted by the authors on behalf of the European Commission in 2010/2011. The authors argue that the concepts of ‘posting’ and ‘posted worker’ are crucial for a proper understanding of the scope of application of the Directive and its interaction with the Rome I Regulation on the applicable law to contractual obligations (Reg 593/2008). A clear and enforceable demarcation of the personal scope will help the Member States to combat abuse of the freedom to provide services and to distinguish more clearly between posting and other types of labour mobility. The proposal submitted by the European Commission to that effect (COM (2012) 131) is judged to be an important step in the right direction.

Civil and Commercial Cases in the EU: Jurisdiction, Recognition, and Enforcement, Applicable Law—Brussels Regulation, Rome I and II Regulations

2021 ◽  
pp. 264-288
Author(s):  
Julia Hörnle
Keyword(s):  
International Law ◽  
Private International Law ◽  
Applicable Law ◽  
Recognition And Enforcement ◽  
Scope Of Application ◽  
Special Rules ◽  
Contractual Obligations ◽  
Rome I ◽  
Brussels Regulation ◽  
The Eu

Chapter 8 examines the harmonized provisions on private international law in the EU. It discusses the conflict of law rules in civil and commercial matters contained in the Brussels Regulation on Jurisdiction and the Rome I Regulation (applicable law contracts) and Rome II Regulation (non-contractual obligations). It analyses their scope of application and the general and special rules of jurisdiction for contract and torts, and the law applicable to different types of contracts and non-contractual liability. It provides a general overview of the main aspects of private international law in the EU and how this applies in internet cases.

7. The Direct Jurisdiction of the Court of Justice

2019 ◽  
pp. 208-248
Author(s):  
Nigel Foster
Keyword(s):  
Member State ◽  
European Commission ◽  
Judicial Review ◽  
Competition Law ◽  
Member States ◽  
Eu Regulation ◽  
Court Of Justice ◽  
Eu Competition Law ◽  
The Right ◽  
Interim Measures

This chapter considers the actions commenced before the Court of Justice. These include actions by the European Commission and other member states against a member state (Articles 258–60 TFEU); judicial review of acts of the institutions (Article 263 TFEU); the action against the institutions for a failure to act (Article 265 TFEU); actions for damages (Articles 268 and 340 TFEU); and the right to plead the illegality of an EU regulation (Article 277 TFEU). The chapter also considers interim measures under Articles 278 and 279 TFEU and enforcement actions arising from the Commission enforcement of EU competition law against individuals.

4. Contractual obligations

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.

Ch.6 Performance, s.1: Performance in general, Art.6.1.3

2015 ◽  
Author(s):  
Atamer Yesim
Keyword(s):  
Burden Of Proof ◽  
Contractual Obligation ◽  
Scope Of Application ◽  
Contractual Obligations ◽  
And Performance ◽  
Definition Of ◽  
The Right ◽  
Legal Consequences

This commentary focuses on Article 6.1.3 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning partial performance of a contractual obligation. Art 6.1.3 addresses the question of whether the obligee has the right to reject partial performance or, conversely, whether the obligor has the right to discharge itself at least partly when the time of performance is due. This commentary discusses the content and scope of application of Article 6.1.3, definition of partial performance with regard to contractual obligations, right of the obligee to reject partial performance and obligation to accept partial performance, and legal consequences of acceptance or rejection of partial performance. It also considers the right of rejection in case of only partly possible performance, defective performance, and performance in excess. Finally, it looks at burden of proof as it relates to partial performance.

6 Applicable Law

2019 ◽  
Author(s):  
Brealey Mark ◽  
George Kyla
Keyword(s):  
Common Law ◽  
Legal Framework ◽  
Unfair Competition ◽  
Applicable Law ◽  
Free Competition ◽  
Competition Rules ◽  
Special Rules ◽  
Contractual Obligations ◽  
Rome I ◽  
Geographical Scope

This chapter discusses the principles that govern the applicable law for cases involving a breach of the competition rules. It begins with an overview of the relevant legal framework applicable to restrictive conduct since 1996, with emphasis on Regulation (EC) 864/2007 on the law applicable to non-contractual obligations from 11 January 2009 to date (Rome II), the Private International (Miscellaneous Provisions) Act 1995 (from 1 May 1996 to 10 January 2009), and English common law principles (prior to 1 May 1996). It also considers the temporal, material, and geographical scope of Rome II, along with its special rules for determining the applicable law to ‘acts restricting free competition’, the affected market, non-compensatory remedies, and unfair competition. The chapter concludes with an analysis of the relevant principles of Rome I that govern the applicable law to contractual obligations.

Einstweiliger Rechtsschutz in grenzüberschreitenden Schiedsverfahren

2021 ◽  
Author(s):  
Julia Mink
Keyword(s):  
Civil Procedure ◽  
Conflict Of Laws ◽  
Applicable Law ◽  
Cross Border ◽  
Arbitral Proceedings ◽  
Contractual Obligations ◽  
Substantive Law ◽  
Interim Measures ◽  
Rome I ◽  
Einstweiliger Rechtsschutz

The thesis focuses on the difficulties of determining the applicable law in interim proceedings in cross-border arbitral proceedings. First, it examines whether arbitral tribunals have a lex arbitri. Subsequently, the various possibilities of interim measures are described and the question is discussed whether arbitral tribunals have to refer to the Rome I Regulation or Section 1051 of the German Code of Civil Procedure in order to determine the applicable conflict of laws for contractual obligations. Then, it is analysed how the applicable substantive law is to be determined or how to proceed in case of non-determinability of such. Finally, the consequences of the application of a substitute law for the main proceedings are discussed.

EC Legislation on Conflict of Laws: Interactions and Incompatibilities between Conflicts Rules

1998 ◽  
Vol 47 (2) ◽  
pp. 439-445 ◽  
Author(s):  
Susanne Knöfel
Keyword(s):  
German Law ◽  
Comparative Approach ◽  
Member States ◽  
Conflict Of Laws ◽  
Applicable Law ◽  
The United Kingdom ◽  
Rome Convention ◽  
Contractual Obligations ◽  
Substantive Law ◽  
The Impact

Formerly, EC activity in the area of private law used to be content with approximating member States' substantive laws in specified areas, and, therefore, eventual conflictual implications demanded considerable interpretative efforts. Modern Community legislation, however, increasingly complements the intended substantive-law harmonisation with provisions on conflict of laws. Given the existence of the (Rome) Convention on the Law Applicable to Contractual Obligations, implemented in the United Kingdom by the Contracts (Applicable Law) Act 1990, this new tendency, where it concerns areas falling within the Convention, raises complex questions on both legislative technique and policy. The Convention, in Article 20, expressly reserves the precedence of Community choice of law rules. However, merely to point to this priority rule appears to be too simple a solution as conflicts, before being solved, have to be defined, and that is what this article aims at. Further, as an analysis that deals with European law would be incomplete without taking into account the impact on member States' law, reference will be made to domestic English and, for the purposes of comparison, to domestic German law. The latter appears to qualify for such a comparative approach because, due to the Rome Convention already having been part of the domestic law for a considerable period, certain experience might be expected within that legal system in dealing with contract conflicts issues thereunder.

scholarly journals New Scenarios of the Right of Defence Following Directive 1/2019

2019 ◽  
Vol 12 (19) ◽  
pp. 111-126
Author(s):  
Marialaura Rea
Keyword(s):  
Eastern Europe ◽  
European Commission ◽  
Member States ◽  
Eu Member States ◽  
European Standards ◽  
The Right

The purpose of this paper is to analyze the effects of Article 3 of Directive 1/2019 when transposing it by Member States. The incompleteness and vagueness of Article 3 of Directive 2019/1 could cause non-harmonization in the various EU Member States, especially those in Eastern Europe, of the right of defence for the defendant party in the antitrust procedure. More specifically, to avoid this effect, Member States must adapt to European standards. In doing so, the paper intends to shed some light on how the right of defence is protected by the European Commission during competition proceedings.

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