In recent years it has become clear that many businesses, motivated by avoiding the rigidity and the price tag associated with labour law and social security, have succeeded in eroding the protection of labour law by creating numerous categories of workers classified as non-employees. In 1996 the International Labour Organisation (ILO) adopted Recommendation 198, which asks its Members to undertake action to reduce 'disguised' employment relationships, with the goal of ensuring that those actually working in an employment relationship are actually given the corresponding legal status. Though these are - from a legal approach - two conceptually different phenomena, they are closely related from a social policy point of view. In order to make a substantial contribution to the discussion on these developments a group of noted European labour law scholars has undertaken the research assembled in this book, recommending labour law reforms based on a close examination of existing conditions. The eight authors analyse measures and legal instruments offered by the European Union and the ILO to cover persons performing personal work, as well as specific developments in Belgium, France, The Netherlands, Poland, Germany, and the United Kingdom. In each case they describe viable ways in which categories of persons not treated as employees can be brought under the protection of labour law and how the distinction between employees and self-employed can become more clear. In a concluding final Chapter comparative conclusions are drawn on the basis of this study and recommendations are given to the EU, the ILO and the individual Member States. Among the specific issues covered are the following: * redefining the subordination criterion; * the role of the courts; * determination of the contract of employment; * forms of labour involving more than two contracting parties (e.g., employment agency arrangements); * the legal position of temporary workers; * 'employee-like' persons, e.g., home-workers or commercial representatives; * the 'bogus' self-employed; * introduction and effect of legal presumptions in labour law and/or social security; * developing uniform criteria for the employment relationship; * criteria for identifying self-employed but economically-dependent workers; * extension of protection of labour law to persons other than employees or the self-employed; and * social rights applicable to all work contracts irrespective of their formal qualification; * floor of core rights. This study seriously contributes toward overcoming the reluctant and piecemeal measures commonly taken to extend the protection of the employment contract. Although the authors acknowledge the continuing tension between labour law protection and the need for a flexible workforce, they also recognize the positive effects of best practices that lead to more certainty, fewer disputes, and clear (but still flexible if necessary) agreements. The book will be warmly welcomed as a signal contribution to addressing what one labour law scholar has called 'the most important industrial relations issue of our time.'

Whether or not we ever attain universal social justice, there can be little doubt that the international community has set meaningful standards, and that significant progress has been made over the last century. The leading standard-setter throughout this period has been the International Labour Organisation (ILO), with its nearly 200 conventions on labour law and social security law. Yet it is often asked: how effective are these standards? Do any ILO Member States actually offer (to quote the Philadelphia Declaration of the ILO Conference of 1944) social security measures to provide a basic income to all in need of such protection and comprehensive medical care? Perhaps not, but some come close, thanks to the application of ILO standards. This much-needed volume is the first detailed analysis of the legal meaning of ILO conventions within the ratifying Member States. In unprecedented depth a panel of distinguished authorities explores the role of ILO conventions in preparing and amending national legislation, in parliamentary debate, and in national case law. For comparative purposes, five countries the United Kingdom, France, Germany, Spain, and the Netherlands - are studied in depth. Among the points of discussion that arise are the following: the social dumping that results from distortion of competition; the ILO's supervision procedures; protection of international migrant workers; temporary exceptions for developing countries; and the possibility of modernising texts of older conventions. A useful annex reprints the texts of the ILO Constitution and the so-called up-to-date conventions pertaining to social security which are currently being promoted for ratification by the ILO. At a time when the very meaning of such terms as work and social security is being challenged by prevailing economic and political forces, this full-scale reappraisal of a body of international law that, although soft, has had a pronounced positive effect on the progress of social justice is to be welcomed. It is well worth the close attention of government policymakers and regulators, company lawyers, and interested academics everywhere.

Legality is a traditional normative concept to regulate the relationship between those in power and those subjected to that power. The principle of legality protects the citizen against the arbitrary use of power, or, more precisely, it demands a legal basis (which itself must be of a certain standard) to legitimize State action. Is legality under siege in Europe? The authors contributing to this provocative and important book answer this question in the affirmative. Twenty-one outstanding European legal scholars expose a spectrum of ways in which the traditional legality principle is under pressure because of the creation of new legal orders, including that of the EU, and the interaction between these new orders and that of the State, combined with such factors as expertise driven governance, difficulties of international organisations to meet their objectives due to a lack of adequate powers, and lack of parliamentary control. The question of whether the main functions of legality - legitimating, attributing and regulating the exercise of public authority - are still fulfilled in the context of the overlapping, interacting, and mutually dependent legal orders of the EU, the ECHR, and the Member States is at the background of all the essays in this volume. Recognizing that legality, if it is to survive, demands rigorous reconsideration of its scope and application, the authors interrogate not only such fundamental democratic issues as who has legitimate power to perform legislative acts and through these to exercise of public power over citizens, but also such urgent European problems as the following: * the use of the precautionary principle in EU decision-making; * the scope of the principle that the exercise of public authority must rest on an act of Parliament; * the extent to which the EU can provide a legal basis for action of Member State authorities in the absence of such a basis within Member State legal orders; * the constitutional position of independent 'regulators'; * the requirements that ECJ and ECHR case law impose on the exercise of public authority; * whether legislative results are coherent in the sensitive area of equal treatment; * transparency, legal certainty, enforceability, and implementation of EC Directives in the field of workers' involvement; * new instruments as the Open Method of Coordination and the involvement of social partners in decision making; * the de facto harmonization of national criminal justice systems; and * the prominent role of the EU in the field of data protection. There can be little doubt that the issue of legality and to whom it applies - in a world in which the role of the modern State is changing profoundly - is a crucial one. It is highly important in the context of the ongoing discussion on the meaning of democracy and citizenship. This volume, with its clear message that reconsidering legality demands taking serious issue with the uncertainty engendered by the processes of globalization, will resonate profoundly among practitioners and policymakers in this time of momentous change.

More and more, social security systems influence each other. Governments, policy makers and academics have become very interested in the way various social security systems approach particular problems, such as ageing of society and the policy to reintegrate recipients of social security benefits into the workforce. For this purpose a profound description and analysis of the legal aspects of the Dutch social security system should prove useful. This monograph aims to provide this information. Moreover, this book describes the Dutch system from an international perspective: it discusses the impact of ILO Conventions, Conventions of the Council of Europe and EU regulations and directives on the Dutch social security system. In this way it shows which impact international law has had on the Dutch system. This contributes to more insight of the meaning of international social security law on this particular system, and it also contributes to the general knowledge of the impact international law has on national social security law.

"Already from the beginning of the twentieth century, international standards on social security have been developed by international organizations. A very active period of standard setting was the 1950s-1970s, although the focus was primarily on European countries. Since the 1990s, few new standards have been developed. Yet, there are still large deficiencies in social protection in many countries, and poverty keeps on being an unsolved problem. At the same time, structural changes are introduced to developed social security systems which seem to jeopardize the implementation of international social standards. On the one hand, the need to promote social protection for all on a global level is still strongly felt. On the other, innovations in social security in all part of the world seem to lead to new obstacles on the way to its realization."

Although it is well-known that administration of social security is a sensitive political issue, the great variety of this type of administration makes it difficult for researchers to seek meaningful patterns that can lead to useful knowledge. Fortunately, this book takes an important step in the approach to the problem. Its focus is on the role of non-public actors - primarily social partners (employers' organizations and trade unions), employers, and private bodies (e.g., insurance companies and funds) - in determining the content, decision-making, and supervision of social security schemes. The editors asked a group of well-qualified researchers from countries of varying types of social security and welfare systems to describe and analyse the role of non-public actors in their national systems from a comparative point of view. The countries covered are Germany, France, Finland, the Netherlands, Denmark, Sweden, United Kingdom, Czech Republic, Spain, and the United States. Administration of benefits for old age, sickness and disability, unemployment, and health care is studied, with an overall interest in the relationships between the involvement of non-public actors, the state, and the insured or covered persons. The pattern that appears sheds new light on such elements as the following:;factors that influence whether non-public actors have a role in the organization of a social security system at what level involvement of non-public actors takes place; prevailing views on, and experiences of, their roles; the impact of their roles (or lack thereof) on the system, in terms of distribution of responsibilities, participation of the insured and covered persons, and access to benefits; who pays for the scheme; who decides to whom the scheme applies; and who takes decisions on benefits in individual cases.;;;;;; The ten country chapters are bookended by introductory and concluding essays that assess such underlying issues as transparency, the goals of the various interest groups, distribution of tasks, issues of democracy, and the degree of control by public bodies. In the last chapter a framework emerges that is helpful for explaining some of the developments noted in the country reports, and that should also prove useful for countries when considering changes in their own systems. The study clearly reveals problems that occur in social security administrations and choices countries can make in realizing their social security objectives.

The Research Handbook on European Social Security Law critically examines the various European dimensions of social security. The collection discusses a wide range of questions and dilemmas ensuing from the present state of European social security law, whilst at the same time identifying future lines of inquiry that are likely to dominate the discourse in the coming years.This Handbook encompasses numerous dimensions of European social security law, including: social security as a human right; standard setting in social security; the protection of mobile persons and migrants; as well as the global context of European social security law. It pays attention to both EU law and to various instruments of the Council of Europe. Throughout the book's chapters prominent experts analyse contemporary debates, discuss new challenges and point out further lines of research. Via this exploration, the Handbook provides a source of inspiration for the development of this special field of law. Covering a breadth of topic and research, scholars and practitioners alike will find this Research Handbook to be an invaluable source of information. Contributors: P. Borsje, S. Burri, P. Copeland, R. Cornelissen, T. Dijkhoff, E. Eichenhofer, O. Golynker, B. ter Haar, G. Katrougalos, I.E. Koch, D. Kochenov, E. Kohlbacher, H. van Meerten, A.P. van der Mei, M. Mikkola, M. Olivier, F. Pennings, D. Pieters, P. Schoukens, L. Slingenberg, G. Van Limberghen, H. Verschueren, G. Vonk, M. Westerveld

This book provides for a comprehensive overview of the various areas of European labour law: fundamental rights, free movement of workers and posting, equal treatment, a-typical forms of employment, collective bargaining and collective agreements, restructuring of enterprises and health and safety. The chapters are written by eminent experts from a considerable number of EU Member States. Most of them are written by two authors from different Member States. As a result of this duo-authorship the book does not approach European labour law from a single country perspective, but intends to give insight in the different ways European labour was received and implemented in the various Member States. The book does not only describe the current state of affairs, but also critically assesses how the interaction of EU legislature, Court of Justice, Member States and social partners has contributed to the development of EU labour law. As such, it is not only a comprehensive introduction to European labour law, but provides also food for thought as part of advanced study in this area. This handbook, dealing with all important areas of labour law, written from several perspectives by experts, but within a restricted number of pages, is therefore also excellent study material for master programmes of European labour law. With contributions by Edoardo Ales (University of Naples Parthenope, Italy), Mark Bell (Trinity College Dublin, Ireland), Niklas Bruun (Hanken School of Economics, Finland), Mijke Houwerzijl (Tilburg University, The Netherlands), Teun Jaspers (Utrecht University, The Netherlands), Sylvaine Laulom (Universite Lumiere Lyon 2, France), Antonio Lo Faro (University of Catania, Italy), Pascale Lorber (University of Leicester, United Kingdom), Ann Numhauser-Henning (Lund University, Sweden), Frans Pennings (Utrecht University, The Netherlands), Saskia Peters (University of Groningen, The Netherlands), Jan Popma (Dutch Labour Inspectorate, The Netherlands), Sophie Robin-Olivier (Universite Paris 1 Pantheon-Sorbonne, France) and Herwig Verschueren (University of Antwerp, Belgium).

The Maastricht Treaty of 1992 introduced the right to free movement for EU citizens. Despite this, in practice there are still substantial barriers to securing these freedoms. EU Citizenship and Social Rights discusses and analyses those legal and practical barriers preventing inter-European migrants from integrating into new host countries. Providing analysis of the development of EU social policy, this book highlights the disparate roles of the EU as a whole and of Member States in determining social rights and outcomes. In particular the issues of social assistance, housing benefits, study grants and health care are examined. In addition, the authors discuss the discrepancy between the social rights granted to workers and social rights granted to non-worker migrants, as well as the barriers facing minority groups like the Roma, which highlight issues in the development of EU social policy for migrants. This book will be a vital resource for students of European law as well as public and social policy. EU policy makers will also benefit from reading this, with its practical and theoretical suggestions for ways in which social policies may be amended to the benefit of EU citizens. Contributors include:; N. Absenger, F. Blank, P. Brown, C. Bruzelius, H. Dean, K. Hylten-Cavallius, C. Jacqueson, P. Martin, F. Pennings, P. Phoa, L. Scullion, M. Seeleib-Kaiser, S. Stendahl, O. Swedrup, A.M. Swiatkowski, M. Wujczyk

This book addresses a topic that is currently high on the agenda in many fora: how to specify and secure a social minimum. The term 'social minimum' has different meanings, depending on the context. These contexts are examined in this book from different perspectives, including law, sociology, philosophy, politics and economics. In the first part, the social minimum is discussed from a conceptual and theoretical point of view. The second part shows the various ways in which the social minimum can be specified and measured. There is a need for new indicators that take into account, for instance, aspects of adequate social participation. As this part shows, the choice of indicators is closely intertwined with political choices. The third part approaches the social minimum from the perspective of legal obligations, addressing the nature of different obligations imposed on individuals and states. The fourth part deals with the question of social minimum in the context of courts, adjudication and justiciability. The role of international treaties and national constitutions - the interpretation of the rights they enshrine and the way these are dealt with by expert committees and courts - is discussed with a view to understanding how the guarantee of a social minimum can be promoted within individual countries. Besides being of interest for academics in fields ranging from legal theory and human rights to the social sciences, the book also serves as an important source for students as well as practitioners interested in the social minimum, and anyone who wants to gain an insight into the current debates on this extremely important issue.

The creation of dynamic and flexible labour markets - increasing flexibility by removing existing rigidities - is widely seen as contributing to economic growth. Expectations from flexibility centre on the creation of employment and thus reducing unemployment, increasing the adaptability of enterprises, social inclusion of marginal groups on the labour market (particularly women and young first entrants), and combating undeclared work. Since the acquis communautaire includes instruments on flexible work, Turkey, while preparing itself for accession to the EU, has to take measures to increase flexibility. Moreover, flexibilisation contributes to modernisation of the Turkish labour market, as it has to increase the participation of women in work and it has to reduce the huge informal labour market. The studies and proposals underlying this book were initiated within the framework of the Matra Pre-accession Projects Programme of the Netherlands Ministry of Foreign Affairs. So, many valuable information came to light in the course of the project that this revised and updated version of the reports is now presented to a wider audience. Its keen insights, applicable both in general and specifically to Turkey, shed light on such vital employment issues as the following: a general introduction to key actors in the Turkish labour market; models of linking security with flexibility; relation between the formal and informal labour markets; industrial relations and collective bargaining; reciprocal rights and duties of worker and employer; the application of existing labour legislation; and, protection of flexible workers in social security. In their analysis of the Turkish case, the authors explore the role of the Ministry of Labour and Social Security and its affiliated institutions: the Social Security Institution (Sosyal Guvenlik Kurumu) and fl-Kur (which has evolved from the former Public Employment Services Organisation BK); the consistency of the flexibilility clauses of the new Turkish Labour Act with the acquis; and Turkish solutions as compared with those of EU Member States. Although it focuses on Turkey and will be of particular interest to practitioners and scholars concerned with EU and Turkish law, the factual and descriptive analysis of labour flexibilisation that the study provides - complete with various detailed models of flexibilisation - will be of great value in assessing the state of employment law in any country experiencing the economic pressure of the current transitional period in worklife realities.

This book addresses a topic that is currently high on the agenda in many fora: how to specify and secure a social minimum. The term 'social minimum' has different meanings, depending on the context. These contexts are examined in this book from different perspectives, including law, sociology, philosophy, politics and economics. In the first part, the social minimum is discussed from a conceptual and theoretical point of view. The second part shows the various ways in which the social minimum can be specified and measured. There is a need for new indicators that take into account, for instance, aspects of adequate social participation. As this part shows, the choice of indicators is closely intertwined with political choices. The third part approaches the social minimum from the perspective of legal obligations, addressing the nature of different obligations imposed on individuals and states. The fourth part deals with the question of social minimum in the context of courts, adjudication and justiciability. The role of international treaties and national constitutions - the interpretation of the rights they enshrine and the way these are dealt with by expert committees and courts - is discussed with a view to understanding how the guarantee of a social minimum can be promoted within individual countries. Besides being of interest for academics in fields ranging from legal theory and human rights to the social sciences, the book also serves as an important source for students as well as practitioners interested in the social minimum, and anyone who wants to gain an insight into the current debates on this extremely important issue.

Since 1945, socially moderated market economies have formed the cornerstone of the European socioeconomic model. Now, however A { due to powerful global economic, political and demographic tendencies A { tensions between social and economic interests and values are increasing. These developments create an urgent need for answers, actions and measures on the European level.This wide-ranging but focused collection of essays approaches this important trend from multiple perspectives. Compiled in honour of the major European labour law scholar Teun Jaspers, it encompasses a broad spectrum of analyses and insights by forty-one distinguished contributors from seven countries. Four major tensions are identified: between the European and national level, between fundamental rights and economic freedoms, between workers and employers, and between soft and hard law instruments. Throughout, a comparative approach is emphasized, not only within the EU but also between the EU and China and South Africa. Among the many topics covered are the following:A { relocation of labour to low-wage countries both within and outside the EU;A { conditions for tempering the excesses of the free labour market;A { the legal weight of voluntary standards such as codes of conduct;A { extending the scope of application of corporate social responsibility norms to transnational enterprises;A { pressure on national social law due to flexibilization, deregulation and individualization;A { contract termination protection;A { employability and training of employees;A { fixed-term work in the wake of the Mangold ruling;A { adjustment of working conditions for ill and disabled workers;A { right to strike; andA { restructuring of enterprises.In light of the Lisbon strategy, the authors address how the various tensions should be reconciled, especially in the context of the flexicurity approach.The book will be of great interest to academics and practitioners for its clear categorization of the issues which must be overcome when regulating employment and social policy in the context of today A|s EU multilevel legal order. It pays detailed attention to the legal questions raised by emerging European labour and employment policies in respect of their specific materialization, the opportunities they offer, their feasibility, and the threats they pose to traditional worker A|s protection and, more generally, to traditional concepts of labour law.