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novel legal and normative analysis of the evolving EU industrial relations system.
The flexicurity project also integrates industrial relations perspectives, by way of employment protection and employability in collective bargaining and the industrial relations system. In focus here is, inter alia, the importance of bargaining structures, mechanisms for information, consultation and worker participation, ‘semi-compelling’ legislation, and collective bargaining solutions, such as Swedish so-called Employment Security or Transition Agreements. These agreements, concluded by the social partners, are an important complement to statutory employment protection regulation, and cover large parts of the labour market. These agreements give employees facing dismissal for reasons of redundancy various rights to severance pay, economic compensation and support, and possibilities for job-seeking and training.
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fundamental Treaty freedoms and fundamental trade union rights is at the centre of attention, and linked to the human rights discourse.
The emphasis on free movement and fundamental Treaty freedoms within the EU has resulted in important new case law from the European Union Court of Justice: the Laval, Viking, Rüffert and Commission v. Luxembourg cases.10
In the research project, the European Union Court of Justice case law is thoroughly legally analysed in relation to national industrial relations systems and to the evolving EU industrial relations system. Legislative reforms ‘post-Laval’ in the Nordic countries are discussed, as is case law on trade union liability for damages resulting from breaches of fundamental Treaty freedoms. As is evident from the BALPA case in the United Kingdom, this case law and the mere threat of trade union liability for damages will have a ‘chilling effect’ on industrial action and trade union activity. The controversial final judgment in the Laval case and the legal reasoning of the Swedish Labour Court (developing precisely a liability for damages for the trade unions for the breach of Article 49 EC (now Article 56 TFEU) and the freedom to provide services) is likely to ‘decrease the temperature’ even further.
The fundamental Treaty freedoms challenge national and European systems of collective bargaining, wage-setting, industrial action, and industrial relations, and thus form an important aspect of EU industrial relations. On a general level, this problem reflects the principal conflict between free market and social protection, and economic and social integration.
11
The reasoning of the European Union Court of Justice and the outcome in these cases challenge trade unions and their possibility to perform core trade union functions at different levels of the EU multi-level industrial relations system. The restrictions on the right to industrial action – despite recognition of industrial action as a fundamental right – limit trade unions’
possibilities to participate in the creation and development of the network of rules, be it expressing international solidarity, protecting workers’ interests
10 See Case 341/05 [2007] ECR I-11767, Case 438/05 [2007] ECR I-10779, Case C-346/06 [2008] ECR I-1989 and Case C-319/06 [2008] ECR I-4323.
11 See Labour Court judgment AD 2009:89.
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and counteracting social dumping, or establishing transnational regulation.
The representation and regulatory functions of trade unions (aiming at negotiation and collective bargaining and information, consultation and co-determination) are central to the trade unions’ influence on the network of rules, and have traditionally needed legal reinforcement (through ILO labour standards, other human rights instruments, or national constitutional or labour law regulation) of freedom of association, the right to bargain collectively and the right to industrial action. The way, according to the Court, in which the right to industrial action must be balanced against fundamental Treaty freedoms, and requirements for justification and proportionality must be met, runs counter to the traditional and inherent logic of national industrial relations systems. This logic is based, in the classical words of Kahn-Freund, on ‘the inequality of bargaining power which is inherent and must be inherent in the employment relationship’12
The important recent reorientation of the case law of the European Court of Human Rights regarding freedom of association and the possibly conflicting case law of the European Union Court of Justice and the European Court of Human Rights is important. In two landmark decisions from 2008 and 2009, respectively, the case of Demir and Baykara v. Turkey and the case of Enerji Yapi-Yol Sen v. Turkey,
and the achievement of parity of bargaining power between employers and trade unions through the use of industrial action.
13
12 See O. Kahn-Freund, Labour and the Law, 2nd ed., Stevens & Sons, London 1977, p. 6.
the European Court of Human Rights has aligned its case law with inter alia ILO Conventions No 87 on freedom of association and protection of the right to organise and No 98 on right to organise and collective bargaining, and with the European Social Charter.
The freedom of association, as protected by Article 11 of the ECHR, is now said to comprise also the right to bargain collectively and the right to industrial action. The Lisbon Treaty and the resultant possible accession of the EU to the ECHR (earlier opposed inter alia by the European Union Court of Justice) puts potential conflicting case law of these courts even more in the spotlight.
13 Judgment of 12 November 2008 and Judgment of 21 April 2009.
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Thus, the research project relates not only to the conflict between fundamental Treaty freedoms and fundamental trade union rights within EU law and the European Union, but also to the (possible) conflicts between two European ‘legal orders’ and two European courts, and EU law and international labour law, respectively. The need to conduct and academically analyse legal ‘balancing acts’ is apparent.14
14 Likewise in the flexicurity project, focusing on the EU law flexicurity discourse, the balancing between two conflicting values – flexibility (for employers) and security (for employees) – is at the centre of attention.
In the Best Interest of the Child – Contemporary Parenthood
Tatiana Tolstoy
1. Introduction
The purpose of this presentation is to briefly introduce the reader to my doctoral thesis. I am fairly new to my role as a doctoral student, but my contact with the Norma Research Programme started years ago when I began to work as a research assistant for Eva Ryrstedt, who is now my supervisor. Already in my examination thesis1
The theory and method of law as normative patterns in a normative field is likely also to form the basis of my doctoral research on legal parenthood.
However, the first phase, among other things, is to systematise and structure the relevant material to detect the different normative positions. For this purpose I will use traditional legal-dogmatic method. In this context, I will also use a historical perspective to provide understanding of today’s rules and how they have developed over time. Then, to deepen the study, I will add a comparative perspective to answer the question of on which ground or grounds legal parenthood should preferably rest. Comparison with other foreign legal systems concerning legal parenthood gives a very good understanding of how these systems have dealt with the issues concerned,
I used the theory of law as normative patterns in a normative field for my analysis.
1 Tolstoy Kongstad, T., Mater semper certa est?, En diskussion kring moderskapspresumtionen i svensk rätt och behovet av lagreglering rörande rättsligt moderskap, Examensarbete vid Juridiska Fakulteten vid Lunds universitet, 2003.
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and could therefore be a starting point for how to deal – or not to deal – with these issues in the Swedish legal system.
In my work I introduce four different types or concepts of parenthood, which I find essential for the understanding of my field of research. The first is a legal parent, a person who is identified as a parent and has thus received legal status with consequent legal rights and obligations. The second is a biological parent, a woman who has gone through a pregnancy and then has given birth to the child, or a man who has contributed through his sperm to the child's nascency. The person who, through her eggs or his sperm, has contributed to the child's nascency is a genetic parent,2