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LUISS Guido Carli

European labour law

Programma

ProfessorRaffaele Fabozzi / Antonino Lo Faro
Course codeM030
General Discipline (SSD)IUS/07
Course Year5
SemesterI Semestre
Course0
Teaching LanguageEnglish
Credits6
Total Workload126
Total Lesson Hours36
Course ContentsThe course gives an overview and deals with the background and sources of labour law and social policy of the European Union. It explores how individual European national legal systems, in symbiosis with the European Union, produce a transnational labour law system that is distinct and genuinely European in character. In particular the course focuses on the study of: the evolution of this system, its national, transnational and global contexts and its institutional structures, the fundamental social rights, free movement of workers, equal treatment, atypical forms of employment, European social dialogue, collective bargaining and collective action, worker participation , the impact of the financial crisis on the European social model.
Reference BooksMassimo Roccella -Tiziano Treu, Diritto del lavoro dell’Unione europea, Sesta edizione, Cedam, Padova, 2012
Catherine Barnard, EC Employment Law, Third Edition, Oxford University Press, 2006
Brian Bercusson, European Labour Law, Second Edition, Cambridge University Press, 2009
Roberto Cosio - Raffaele Foglia, Il diritto del lavoro nell’Unione europea, Giuffrè, Milano, 2011
Silvana Sciarra, Manuale di diritto sociale europeo, Giappichelli, Torino, 2010
Silvana Sciarra (ed.), Labour Law in the Courts, Hart Publishing, Oxford, Portland Oregon, 2001
Suggested cases-law and relevant legal texts downloaded in English.
Course Formative ObjectivesThe course will give the students an inside into the labour law of European Union, a growing area of law which form an integral part of the legal order of its 27 Member States. The course aim to provide the institutional framework of the EU current law and social policy, signaling the controversial issues and accustoming the student to the legal reasoning of the European Court of Justice through the discussion of case-law. During the course, students will be able to consult European database to download texts and decisions in English version, to research and analyze documents and study reports, to familiarize themselves with network of European experts, to acquire technical skills for the preparation of actions based on European law, or to give advice, joint texts, collective agreements, codes of conduct.
PrerequisitesThe knowledge of Italian Labour Law and European Union Law is recommended.
Teaching MethodThe teaching method used during the course is based on traditional lectures and on seminars, case law, individual or team works, presentations and assignments, consultation of relevant database.
Assessment Methoda) A final written test at the end of the course will make up 50 % of the final note for the course;
b) Individual /team work executed during the course (case law, presentations and assignments) will make up 50 % of the final note.
Criteria For Deciding On Subject Of Final PaperActive participation to work groups about one of the subject matters of the course; the final mark obtained.
Professor e-mail address filled by informative system
Extended Program And Reference Reading Material
Week 1Introduction to the European Labour Law: The evolution of EC social policy between economic and social aims; the role of the European Court of Justice; the European social model; Law-making in the field of social policy; the use of directives and of soft-law measures; the legislative process; the employment policies and the Open Method of coordination; the Charter of Fundamental rights
(selected readings of chapter I of the reference book)
Week 2Free movement of workers: the Treaty and the secondary legislation; the rights of departure, entry and residence; the access to employment and the right to equal treatment; the right to permanent residence in the host; social security rights
(selected paragraphs of the relevant chapter; case law)
Week 3Limitations on freedom of movement: Express derogations, public policy, public security and public health; Employment in the public service; justifications
(selected paragraphs of the relevant chapter; case law: the Viking case)
Week 4Posted workers: the case law Rush Portuguesa; the Posted Workers Directive 96/71; the Services directive (the “Bolkestein Directive”); the Laval case, the Ruffert case, the Luxembourg case.
(selected paragraphs of the relevant chapter; case law: the Laval case, the Ruffert case, the Luxembourg case)
Week 5The equality law and the prohibition of discriminations: the development of EC law and policy on equality. Sex equality and equality in other fields. Equality as a general principle of law. Non-discrimination: direct discrimination; can direct discrimination be justified? Indirect discrimination: the definition based on provision, criterion or practice.. would put persons at a particular disadvantage; the disparate impact; the justifications based on a legitimate aim, if the means of achieving that aim are appropriate and necessary.
(selected paragraphs of the relevant chapter; case law)
Week 6Equal pay: meaning of pay, the scope of the comparison (unequal pay practices: equal pay for the same work, equal pay for work of equal value), non-discrimination, justifications: personal factors, market forces/labour market factors, collective bargaining; different level of scrutiny. Enforcement of equality rights: direct effect; burden of proof; judicial remedies (effectiveness of the remedy, leveling up or down?, proportionate value?)
(selected paragraphs of the relevant chapter; case law)
Week 7Equal treatment : the prohibited grounds of discriminations. Sex, gender reassignment, marital and family status. Race and ethnic origin. Religion or Believe, sexual orientation, age, disability, atypical work. Instruction to discriminate. Harassment. Derogations (sex of the worker as a determining factor; protection of women as regards pregnancy and maternity, ethos based organizations). Promoting equal opportunities : positive actions, the role of the Court of Justice, the Treaty and the second generation directives.
(selected paragraphs of the relevant chapter; case law)
Week 8Restructuring enterprises : employee rights in the transfer of undertakings, employer’s insolvency and collective redundancies. The information and consultation with the workers’ representatives, the subject-matter of consultation, the delay of the procedure, implementation and remedies.
(selected paragraphs of the relevant chapter; case law)
Week 9Worker involvement in the decision-making : information, consultation and worker participation. European works councils: the scope of the directive 94/45 (now: 09/38) concerning the transnational companies, the negotiating procedure, the subsidiary requirements, the EWC’s success as a model, the framework-agreement signed by the EWC, from the European WC to the global WC; the European company statute and the worker participation at the company governance; the framework directive on information and consultation at national level 02/14. The case law : the duty to inform in good time, the information process in the community-scale group of undertaking.
(selected paragraphs of the relevant chapter; case law)
Week 10Freedom of association, collective bargaining and collective action: as fundamental rights. Theoretically, only the European Court of Human Rights should have competence to decide issues related to collective bargaining and industrial action, as the European Union Treaties do not confer competence on the EU to legislate on such issues. The ECHR’s scope extends to collective bargaining given the right to freedom of association under article 11 (case- law Wilson and Palmer v. United Kingdom; Demir and Baykara v. Turkey; Energji Yapi-Yol Sen v. Turkey ). However a series of decisions determined by the ECJ (Viking case, Laval case, Ruffert case, Commission v. Germany) suggest that where member state law allowing trade union action results in a restriction of one of the fundamental freedoms protected by the European Union Treaties, the ECJ will intervene. Collective rights versus economic freedom ?
(selected paragraphs of the relevant chapter; case law)