Does the 'Personal Employment Contract' Provide a Basis for the Reunification of Employment Law?

This article considers Mark Freedland's idea, at the core ofThe Personal Employment Contract, that a unified body of employmentlaw for ‘employees’ and ‘workers’ isboth feasible and desirable. It discusses the origins of thedivision between employees and the self-employed, and considerswhether the rediscovery of the worker concept in the 1990s hasprovided the hoped-for solution to problems concerning the coverageof employment legislation. More generally, it seeks to takeup Freedland's challenge to reconceptualise the employment relationshipas a ‘personal employment contract’ covering bothemployees and the dependent self-employed.     

Reflexive Governance and European Company Law

The use of reflexive forms of governance is growing within the EU, in particular as the open method of coordination (OMC) is applied to a wider range of contexts. Reflexive approaches view diversity of laws and practices across the Member States as the basis for experimentation and mutual learning within the overall process of European integration. Company law, however, seems to be an exception to this trend: recent activity in this area has mostly taken the form of 'hard law' harmonisation through directives, coupled with the stimulation of regulatory competition through judgments of the European Court of Justice concerning freedom of movement, most notably the Centro s case. The deliberations of the European Corporate Governance Forum barely qualify as a 'company law OMC' because of the limited space allowed for 'learning from diversity'; instead, differences in the laws of the Member States are seen, in the discourse of the Forum, as 'distortions of competition'. In the area of labour law, by contrast, a degree of functional convergence and a coordinated raising of standards have recently been achieved by the dovetailing of the OMC with social policy directives. The contrasting experiences of labour law and company law suggest that reflexive or experimentalist approaches to European governance can be effective when they operate so as to complement mechanisms of harmonisation and regulatory competition, rather than being presented as alternatives to them.     

Insolvency and employment protection: the mixed effects of the Acquired Rights Directive

The statutory protection provided by European Community law to employees during transfers of undertakings and other restructurings has been criticised on the grounds that it undermines insolvency procedures and interferes with the ‘rescue’ process. We present an analysis which suggests that granting employees rights of this kind may be an efficient means of recognising their firm-specific human capital. Case-study evidence is then presented to show that while in some situations employment rights may obstruct reorganisations, in others they allow employee interests to be factored into the bargaining process in such a way as to enhance the survival chances of enterprises undergoing restructuring. The law functions best when effective mechanisms of employee representation are in place and when the conditions under which employees’ acquired rights can be waived in the interests of preserving employment are clearly specified.     

Citizenship and choice

Citizenship: Rights, Community and Participation. By David Prior, John Stewart and Kieron Walsh. Pitman Publishing, 1995. Pp.194. £20.

Markets, Service and Choice. By Kieron Walsh and John Stewart. Belgrave Paper No.12. Local Government Management Board, 1995. Pp.24.

Public Services and Market Mechanisms. By Kieron Walsh. Macmillan, 1995. Pp.284. £40 hb, £12.99 pb.     

The Reflexive Properties of Corporate Governance Codes: The Reception of the ‘Comply‐or‐explain’ Approach in Slovenia

The Slovenian Corporate Governance Code for Public Joint‐Stock Companies was adopted in March 2004. We examine how far the implementation of the Code has resulted in the ‘reflexive’ learning processes which the ‘comply‐or‐explain’ approach to corporate governance aims to bring about. We find that compliance strategies are strikingly uniform across firms in terms of the content of deviations as well as in types of disclosure and explanations for deviations. Moreover, the quality of corporate reporting is low, with effective explanations representing only a small minority of disclosures. Thus there is little evidence that the Code has stimulated organizational learning. We consider the implications of our findings for the development of corporate governance in transition systems and for the comply‐or‐explain approach more generally.     

A Manifesto for Social Europe

The European Union is still far from having social legitimacy. The issue is indicative of a huge uncertainty about Social Europe. What is it? What are the principles of social justice behind it? In our view, a new social constitution of the European Union is needed. Political democratisation must be accompanied by the foundation of a social Europe. We argue that were the IGC to combine the Charter of The Fundamental Social Rights of Workers with the Maastricht Protocol on Social Policy, inserting both into the TEU, it would lay the legal foundations for a dynamic European social constitution; a Social Europe dedicated to the combating of social exclusion and the maintenance of solidarity.     

Reinventing the Market? Competition and Regulatory Change in Broadcasting

The reforms instituted by the Broadcasting Act 1990 led to a period of turbulence and upheaval within broadcasting with results that were at best unintended and, at worst, seriously undermined the ideal of public service broadcasting. A Hayekian economic perspective would suggest that the reforms failed because they did not go far enough in the direction of full ÔmarketizationÕ. The paper develops an alternative perspective, based on an adaptation of systems theory within the context of law and economics. This approach offers a broader methodological foundation for the understanding of Ôeconomic lawÕ and a different normative perspective on the broadcasting reforms. It is suggested that the difficulty with these reforms was not their failure to go further in the direction of the market, but rather their lack of clarity in articulating a clear alternative to the market as the basis for the organization of television production.     

Legal Diversity and Regulatory Competition: Which Model for Europe?

Abstract:  Two models of regulatory competition are contrasted, one based on a US pattern of 'competitive federalism', the other a European conception of 'reflexive harmonisation'. In the European context, harmonisation of corporate and labour law, contrary to its critics, has been a force for the preservation of diversity, and of an approach to regulatory interaction based on mutual learning between nation states. It is thus paradoxical, and arguably antithetical to the goal of European integration, that this approach is in danger of being undermined by attempts, following the Centros case, to introduce a Delaware-type form of inter-jurisdictional competition into European company law.