Massimo PalliniUniversity of MilanDepartment

of Social and Political Sciences

massimo.pallini@unimi.it

meets students on Friday from 9 to 10 a.m. at room

n. 3 second floar or on Micorsoft Teams platform
In case this time does not fit you may ask for an
appointment by email
 Materials to study for the exam
a) Text book :nstein (2009), International and
omparative bour law: current challenges, Palgrave
Macmillan
Teun Jaspers, Frans Pennings, Saskia Peters,
European Labour Law, Intersentia, 2019.
b) Slides, rulings and presentations utilized
during the lessons
 Time of the lessons on line

Monday h. 12,30 - 14,00

Tuesday h. 10,30 - 12,00
Thursday h. 10,30 - 12,00
Without break ?
The lessons are all on Microsoft Teams
platform. The code to join the class is: ollstwb
 EXAMS

21 Multiple choice tests (1 point)

3 open question (0 – 3 point)
Presentation in class and dissertation (0 – 5
points)
 Program of the course
The course provides students with an good knowledge of the regulation
of the most relevant and problematic aspects of employment relationship as
stated by European Law and by national law of European Member States
by comparison with USA law

Aims
- identify legal sources of employment relationship at international,
European and national level and understand how they interact among them;
- identify what and how individual and collective contracts regulate
employment relationship and waive the law;
- acknowledge possibilities and rigidities labour law provides in
organizing, managing and downsizing personal in medium-large size
companies;
- acknowledge how labour law determines directly or indirectly labour
cost within a national system
- compare differences of national labour laws and assess regulative
advantages and disadvantages.
 SYLLABUS
1. the istitutional framework 16. EU collective redundancies
2. EU Competences regarding labour law 17. employer insolvency
3. Collective bargaining 18. EU transfer of undertakings
4. EU internal market regulation 19. EU Information and consultation
5. EU Free movement of workers directives

6. EU international employment contract 20. EU Health and safety at work

7. posted workers 21. ECFR social rights

8. EU no gender discriminations 22. Economic crisis and austerity reforms

9. EU no discrimination based on other 23. ECHR social rights

factors (race, sexual orientation, religion, 24. The relationship between EU and
personal opinions, age, handicap) Council of Europe and the respective
10. EU Working Time and Parental Leaves systems of law

11. Part time work contract 25. ILO fundamental conventions

12. Fixed term contract 26. WTO regulation

13. Temporary Agency work 27. Global trade and social dumping

14. Self employed work and parasubordinate 28. Social clauses in free trade agreements
work 29. Corporate social responsibility
15. Platform workers and GIG Economy 30. simulation of the exam and
clarifications
 1.2. The institutional
framework and the legal
sources in European and
International systems
Massimo Pallini
Università di Milano
Dipartimento di studi del lavoro
massimo.pallini@unimi.it
 The European Union

The European Coal and Steel Community (1951)

The European Atomic Energy Community (1957)
The European Economic Community (1957)
All incorporated in the European Union (1993)
3 pillars
I. Community pillar (incorporating the ECT)
II. Common Foreign and Security Policy
III.Police and Judicial Co-operation and Criminal matter
 Artiche 5 Treaty on EUThe European Parliament, the Council, the
Commission, the Court of Justice and the Court of Auditors shall exercise
their powers under the conditions and for the purposes provided for, on the
one hand, by the, provisions of the Treaties establishing the European
Communities

The principle of attribution of powers

the EU can only act where it’s given the powers to do so
The principle of subsidiarity in the strict legal sense
the EU should only take action where an objective can be better achieved at the EU
level than at the Member State level
The principle of proportionality and intensity
the means used by the EU should be proportional to the objective pursued
 The institutions
The European Parliament (EP)
Composition and election
- the EP members for each Member State are determined proportionally
according to the population*
- they are elected by direct universal suffrage
- their mandate lasts 5 years
EP powers of control on the Commission
- formal censure (without any real significance)
EP powers of control on the Council
- codecision art. 251 ECT (in given matters: budget, request of new member,
aids for employment, equal opportunities and treatment of men and women in
employment)
- mandatory consultation by the Council on draft directive affecting the
establishment or functioning of the common market
European Parliament
Old members NewRepresentatives
Members (1.5.2004) (785)
Italy (1957) 72 Czech Republic 20
Germany 99 Estonia 6
Netherlands 25 Cyprus 6
Belgium 22 Latvia 8
France 72 Lithuania 13
Luxembourg 6 Hungary 20
Ireland (1973) 12 Malta 5
Great Britain (?) 72 Poland 50
Denmark 13 Slovakia 13
Greece (1981) 22 Slovenia 7
Spain (1986) 50 Croatia 12
Portugal 22 New members (1.1.2007)
Austria (1995) 17 Bulgaria 17
Finland 13 Romania 33
Sweden 18 Candidates:
Turkey (?)
 - is the most important legislative institution
- is composed by a representative for each Member State*
(* the national Minister competent for the subject of the meeting)
*
a) acts by absolute majority as general rule (15 out of 27 MS),
b) acts by qualified majority (260 out of 352 votes + 16 of the member states
representing at least 65% of the population); the votes of its members are
differently weighted proportionally to their population) for regulating: a) free
movement of workers, b) establishment of the internal market, c) working
conditions, d) information and consultation of workers, e) equality between
men and women, f) employment-incentive measures, g) European Social Fund,
h) vocational training, i) economic and social cohesion.
c) acts by unanimity of its members: a) for providing the necessary (but not
expressly conferred by the Treaties) powers in order to attain one of the EU
objectives, b) for amending a proposal of the Commission, c) rights and
interests of employed people, d) social security and social protection of
workers, e) representation and collective defense of workers, f) conditions of
employment for third country nationals, g) financial contributions for
promotions of employment
Different weight of national votesin the Council
(345 votes)

Germany 29 Bulgaria 10
(Great Britain 29) Austria 10
France 29 Slovakia 7
Italy 29 Denmark 7
Spain 27 Finland 7
Poland 27 Ireland 7
Romania 14 Lithuania 7
Netherlands 13 Latvia 4
Greece 12 Slovenia 4
Czech Republic 12 Estonia 4
Belgium 12 Cyprus 4
Hungary 12 Luxembourg 4
Portugal 12 Malta 3
Sweden 10 Croazia 7
 The Commission
The President and the commissioners are named jointly by the Goverments of the MSs
and approved by the EP
The Commission can be dismissed collectively by the EP
It acts by absolute majority
Each commissioner is competent for given matters, the relative portfolio and
directorates-general

*
In a large number of cases the Commission has the exclusive right of initiative regarding
the legislative process
It governs the ordinary and executive EU action
It checks that the MSs properly respect their obligations and, in negative case, can bring
them before the EU Court of Justice
 The Court of Justice
- It consists of 28 judges appointed unanimously by the MSs
- It’s assisted by 9 Advocates-General who have to bring to the Court
reasoned submissions about the cases
- The term is 6 years renewable
The rulings of the Court are not appealable
the vote of every Judge is secret
*
The Court judges:
a) if a MS does not respect its obligations
b) if acts of the Commission and of the Council have no respect for the Treaties (a sort of
“control of European constitutionality”)
c) the preliminary questions referred by the national Judges on the interpretation of European
laws
- the ruling is binding for the national Judges (n.J.).
- this procedure has set a direct relations between n.J. and Court
- this procedure has given to the Court a sort of “para-legislative
power”
 The Court of First Instance
- It consists of 28 judges appointed unanimously by the SM
- The term is 6 years renewable
The rulings are appealable to the Court of Justice
only for incompetence, irregularities of procedure and violation of
EC law
*
The Court of F.I. judges:
a) disputes between the Community and its staff
b) appeals by enterprises concerning ECSC levies,
production quotas, prices and competition
c) compensation for the disputes sub a) and b)
 European Central Bank
Members: President and Vice-President, named by the Council
(by absolute majority) for 8 years (not renewable), and Governors of
national central banks from all EU countries
Functions:
Sets the interest rates at which it lends to commercial banks in the eurozone,
thus controlling money supply and inflation
Manages the eurozone foreign currency reserves and the buying or selling of
currencies to balance exchange rates
Ensures that financial markets & institutions are well supervised by national
authorities, and that payment systems work well
Ensures the safety and soundness of the European banking system
Authorizes production of euro banknotes by eurozone countries
Monitors price trends and assesses risks to price stability
all EU countries are part of the Economic and Monetary Union
(EMU), 19 of them use a single currency the Euro (Eurozone:
Austria,Belgium,Cyprus,Estonia,Finland,France,Germany,Greece,Ireland,Italy,Lat
via,Lithuania,Luxembourg,Malta,Netherlands,Portugal,Slovakia,Slovenia,Spain)
 The European Social Fund
It’s regulated by the Council, who decides the priority
objectives, but it is administered by the Commission
It aims “to render the employment of workers easier and to
increase their geographical and occupational mobility within the
Community, and to facilitate their adaptation to industrial
changes and to changes in production systems, in particular
through vocational training and retraining” (art. 146 TCE)
*
Other EC Funds:
- European Agricultural Guidance and Guarantee Fund
- European Regional Development Fund
- European Fund against the risk of trading
globalization
 2. Sources and effects of the European Law
Primary or community law:
- legal norms contained directly in the Treaties
- legally binding direct effect in MSs legal system
*
Secondary law:
- legal norms derive from the decisions taken by European institutions
using the powers the Treaties have conferred upon them
direct: regulations
(general)
decisions
(personal)
legally binding
- effect indirect: directives
(need a MSs
implementation)

not legally binding recommendations

(political engagement) opinions - guidelines
 The doctrine of primacy of EU law
The national (even constitutional) laws contrary to primary
EU Law or EU regulations have to be considered by the national
Judges null and void and may not be applied in a vertical
(State/citizen) as well as horizontal (citizen/citizen) way.
*
The s.c. Solange doctrine
Many MSs Constitutional Courts (German, Italian, French,
Spanish, Polish) do not accept the interpretation of an unlimited
primacy of EU Law; they affirm that this supremacy works so
long as the EU law is not contrary to the core national
constitutional rights. The Constitutional Courts reserve the
right to control the “constitutionality” (in the national sense) of
EU law.
 The efficacy of the directives
The directive has a legally binding but not a direct effect
in the MSs legal system.
The directive need to be transposed in a national norm
or an erga omnes collective agreement (i.e. Belgium, France,
Germany, Netherlands) by the date stated in the directive.
The MSs has a certain discretion to choose (within the
limits given by the directive) the most appropriate way to
concretely regulate the same subject in their legal system.
On social matters the MSs may maintain or adopt a
more favourable regulation for the citizens and
workers than that the directive guarantees
(principle of «favor» or of «no
regression»).
 General provisions of directives
on civil and social rights

“more favour” clause

Member States and/or the social partners can
maintain or introduce more favourable provisions
for workers than set out in a directive.
*
“no regression” clause 
Implementation of a directive does not
constitute valid ground for reducing the general
level of protection afforded to workers in the field
of the agreement (CJUE case Mangold, C-144/04)
 What happens if a MS does not implement a
directive by its established term ?
A) the s.c. self executing directives
(i.e. those state clear, precise and specific regulations that operatively do not need to be
transposed and specified in a national law to be applied in concrete)
have only vertical direct effect, but no horizontal effect

Citizen v. «State» case Citizen v. citizen case

The directives are to be applied the citizen who has lost a case against
by the national Judge another citizen only because the MS
hasn’t implemented the directive has
the right to be compensated by her/his MS
*
B) the s.c. not self executing directives
having neither direct vertical nor direct horizontal effect
but the national Judge must prefer among the possible interpretations
of the national law the closest one to the directive
the Commission can bring the MS before the Court of Justice and ask
for it to be condemned to pay a penalty payment (problem of
quantification)
 Main differences with
1.

other International Legal Sources

UN ad ILO Conventions:
- are binding on UN and ILO Member States only on ratification
- are binding on UN and ILO Member States citizens and direclty applicable in
individual litigation only:
a) if they are ratified in «monist» legal systems (e.g. France, Spain, Italy, most
Latin American countries)
b) if they are also implemented by national law in «dualist» legal systems
(e.g. USA, UK, Australia, Canada, Scandinavian countries)
*
WTO Treaties and decisions:
are directly legally binding on the WTO Member States, but they are not binding on WTO
Member States citizens and it is not direclty applicable in individual litigation