Table of Contents

Before and After the Economic Crisis

Before and After the Economic Crisis

What Implications for the ‘European Social Model’?

Edited by Marie-Ange Moreau

This timely book casts new light on the key issues arising from the contentious debate around the future of the European Social Model. The book brings together leading experts to provide a thorough and well-informed response to the recent developments in European social and labour law and policy, in the light of institutional changes. The contributors provide unique insights as they evaluate the impact of the enlargement processes, the implications of the Lisbon treaty, the integration of the Charter into EU law – and, crucially, the consequences of the economic crisis.

Chapter 10: The Principle of Non-Discrimination within the Fixed-Term Work Directive

Mark Bell

Subjects: law - academic, european law, labour, employment law, law and society, social policy and sociology, comparative social policy, economics of social policy

Extract

157 Justice has repeatedly recognised that this is one of the general principles of EC law. In this context, equality is highly malleable and it amounts to little more than a test of rationality.9 The general principle of equality can be applied as a constraint on arbitrary rules within labour law. An illustration is provided in Cordero Alonso v Fondo de Garantía Salarial.10 This case concerned the recovery of payments where the employer was insolvent. Following his dismissal, compensation of EUR 5,540 for Mr Cordero Alonso was agreed under a judicially-supervised conciliation settlement. When his employer became insolvent, he requested the sum from the Spanish guarantee authority. Full payment was refused on the basis that this was a conciliation settlement; full payment was only provided for compensation awarded in a court judgment. The Court of Justice held that the Spanish courts had to ensure: ‘observance of fundamental rights, which include inter alia the general principle of equality and nondiscrimination . . . That principle precludes comparable situations from being treated in a different manner unless the difference of treatment is objectively justified.’11 On the facts, the Court deemed that Mr Cordero Alonso’s situation was comparable to that of workers awarded compensation via a court judgment and there were no grounds for treating him differently in relation to his entitlement to receive the payment. Equality, in this manifestation, is an instrument for promoting fairness between all workers. At the other end of the spectrum, equality can be interpreted with more rigour, typically...

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