The rapid expansion of digitalized cross-border telework challenges the traditional foundations of workplace democracy by complicating the exercise of workers’ information and consultation (I&C) rights. These rights, although fundamental within the European social model and recognized under Article 27 of the EU Charter of Fundamental Rights, are not universally protected or implemented, particularly outside Europe. This paper examines the multifaceted challenges posed by cross-border telework to the realization of I&C rights. First, it explores the tensions between their fundamental nature and the diversity of national legal mechanisms ensuring their application. Second, it analyses how cross-border telework extends these challenges into private international law, creating uncertainty over applicable laws and competent representation units. Through comparative legal analysis, the paper argues that traditional, location-based models of representation are increasingly inadequate in the digital context. It proposes a conceptual reorientation from the spatial question of where representation occurs to the personal question of which employees fall within its scope. Such a shift, it contends, would not only strengthen the effectiveness of I&C rights in cross-border contexts but also reinforce their democratic character, ensuring that employees remain meaningfully represented within evolving forms of work organization.
This study examines how digitalization reshapes workers’ representation and explores whether EU labour law adequately supports the digital exercise of information and consultation (I/C) rights. Digital technologies offer trade unions new opportunities for organization and engagement, particularly among younger and platform-based workers, but also raise challenges related to resources, security and the balance between online and face-to-face interaction. National legal frameworks are generally neutral, neither prohibiting nor facilitating digital tools in collective labour relations, which enhances the importance of EU-level regulation. A review of the relevant EU directives reveals fragmented and inconsistent provisions: while most remain silent on digital communication, some require timely and substantive consultation, which in practice presupposes digital means. Sporadic references exist, but no coherent framework has emerged. This paper argues that the I/C framework directive should be revised to integrate clear provisions on digital resources, ensure effective implementation and harmonize existing inconsistencies. Proposed reforms include codifying rules on electronic communication, clarifying applicable law in crossborder contexts and strengthening enforcement. Ultimately, adapting EU law is essential for ensuring that digitalization reinforces, rather than undermining, workers’ collective rights.
The Korea-EU Free Trade Agreement (KOREU FTA) has been framed as a case in which the 'labour provisions' in trade agreements could contribute to respect for fundamental principles and rights at work. From a perspective of European commentators, in particular, this evaluation is seemingly based on the idea that the complaints mechanism within the FTA - notably the Panel of Experts - helped South Korea to arrive at the long-delayed ratification of the International Labour Organization(ILO) fundamental Conventions, and that opportunities for social dialogue were created in Korea, where they did not previously exist. This article attempts to review these evaluations from a perspective of the Global South, based on a history of struggles of labour and social movements in Korea. First, it illustrates how Korean trade unions and social movements have staged protests against neoliberal globalization and trade agreements since 1990s. This would explain why Korean civil society was highly sceptical of claims that the labour provisions could improve rights of workers and public interests. Second, this article highlights the real challenges and difficulties for meaningful social dialogue, which Korean trade unions have experienced inside and outside of the Trade and Sustainable Development Chapters in the KOREU FTA. In addition, the paper analyses the extent to which the principle offreedom of association has been respected and considers whether meaningful change has occurred in Korea, before and after the ratification of ILO Conventions. This analysis leads to questions such as how international labour standards, notably freedom of association, could be realized in domestic countries, and the role of trade unions and civil society in defending and promoting fundamental labour rights, with or without the FTA regime.
This article explores the evolving role of the Korean judiciary in applying ratified International Labour Organization (ILO) Conventions under domestic law. Following the ratification of Conventions No. 87, 98, and 29 in February 2021, they have been legally binding in Korea since April 2022. However, significant challenges persist in integrating these international standards into Korean labour relations. The article emphasizes the critical function of the domestic courts in interpreting and applying the Conventions to individual labour disputes in the context of Korean labour relations and laws. Given the initial reluctance and inconsistent approaches by the government, the judiciary's commitment to international labour standards is essential for their effective implementation. This article underscores the necessity for the courts to respect international interpretations while addressing domestic specificities, while aiming to transform international labour standards from symbolic gestures into actionable norms in Korea.
Various considerations emerging from the Special Issue on the aftermath, consequences and lessons learned from the EU-Korea FTA case merit further exploration. They include the exceptional nature of the case, the particular role of collective labour rights in the discourse on trade and sustainability, the difficulty of transposing international standards to the national level (as illustrated by the developments in Korea), a number of features of current sustainability clauses and the issues arising therefrom, and the complex relationship between different international frameworks, organizations and bodies. The concluding considerations argue that, although the EU-Korea FTA case has so far neither triggered fundamental changes in domestic law and practice nor stimulated follow-up litigation on trade and sustainability, it does provide an important point of departure for overcoming certain issues that have long stood in the way of making FTAs effective tools for encouraging compliance with fundamental labour rights. Various other issues and notably difficulties have been thrown into sharper relief by the procedure, the Panel's decision and/or its aftermath.
This article examines the intricate relationship between competition law and collective rights in EU regulations, critically assessing whether and to what extent self-employed workers can exercise collective rights based on the Court of Justice of the European Union (CJEU) case law. Additionally, it considers the European Commission's recent initiative to acknowledge and expand the collective dimension of self-employed workers. To address the specific collective rights of genuine self-employed workers, the Commission, acting in its capacity as the EU's competition authority, has taken steps in the Guidelines on the Application of Union Competition Law to Collective Agreements to steer towards a renewed interpretation of the scope of application of Article 101 of the Treaty on the Functioning of the European Union (TFEU), with the aim of excluding collective bargaining agreements concluded by or on behalf of certain categories of solo-self-employed workers from its scope. In light of this move, the article provides a critical analysis of the Guidelines and evaluates the degree to which the current EU legal framework aligns with fundamental collective rights. while attempting to offer renewed hermeneutical solutions to alter the consolidated line of systematic construction of the relationship between collective rights and competition law.
Free Trade Agreements (FTAs) and similar trade-related arrangements between states have often been associated with mechanisms that inevitably give rise to a race to the bottom in terms of social and environmental standards. As barriers to interstate trade are removed or alleviated, regulatory competition for foreign investment may deter the adoption and enforcement of ambitious protective standards under national law. From a trade law perspective, ambitious social or environmental standards appear primarily as a risk of protectionism and an encroachment on the interests of less developed countries, which may lead to claims brought by other states or even private However, it is also clear that the prospect of free or favourable trade arrangements with important import markets (like the EU) is probably the most powerful 'carrot' available in international relations, where 'sticks' to enforce state's commitments to observe even the most basic human rights have traditionally been in short supply. In other words, when used systematically as a reward for compliance with certain social and environmental standards, FTAs and similar arrangements could play a significant positive role in terms of sustainability. As long as these are internationally recognized minimum standards, respect of which could reasonably
More than four years after the European Union (EU)-Korea panel ruling, this article explores the meaning of the case for the design and follow-up of sustainability clauses in EU trade agreements. It analyses the case in the perspective of the recent history of EU Trade and Sustainable Development (TSD) policy. It is argued that the application of a 'developmental' approach to sustainability provisions in EU trade agreements constitutes the main innovation brought by the EU-Korea panel ruling. This 'developmental' approach entails that TSD provisions-social and environmental clauses-enable the re-embedding of the market into a form of development that is more sustainable. The article will focus on the labour component of TSD provisions. The developmental approach explored entails that social rules contained in EU trade agreements are perceived as productive factors paving the way for sustainable growth and competitiveness that is not solely based on cost factors. In doing so, the panel ruling questions the thirty-year dominance of the World Trade Organization (WTO) Singapore Ministerial Declaration (1996), which considered the trade-labour nexus as two separate pillars. By offering this new paradigmatic approach, the panel ruling has paved the way for a normative intertwining of trade and social issues. In the aftermath of the panel ruling, the European Commission has swiftly built on the opportunities-and the limits-provided by the ruling to strengthen its sustainability provisions, essentially through the amendment of the compliance and 'essential elements' clauses. However, the evolution of TSD provisions continues to be controversial. This article will outline options for future TSD provisions and conclude that the structural evolution suggested by the developmental approach promoted in the EU-Korea panel ruling should further strengthen the sustainable policy space.
The Panel of Experts proceeding constituted under the 'Trade and Sustainable Development' chapter of the European Union (EU)-Korea FTA offers an important occasion to assess the contribution of the 'sustainability' chapters in recent trade agreements. The EU-Korea panel proceeding shows the close connection between trade and sustainability issues, and the utility of trade agreements in promoting and achieving the sustainability objectives. It also suggests the viability of a non-binding dispute settlement mechanism in dealing with sensitive matters in order to achieve a long-term solution in an amicable manner. At the same time, the panel proceeding also raises some structural issues for the consideration of states in their future trade agreements. States may consider adopting detailed procedural rules and structured logistical support in advance to ensure the completion of the proceeding in a shortened timeframe. They may also consider clarifying textual language in the agreements as regards the role of other treaties in the interpretation and application of the trade agreement at issue. Also, future trade agreements need to elaborate post-proceeding steps so as to achieve the goal of the panel proceeding. Future agreements may also wish to explore a more comprehensive review scheme through a sustainability chapter where the same or similar measures of both parties of trade agreements are reviewed comprehensively from the same legal standard so as to ensure a long-term solution of the matter between the parties in a symmetric manner.
Hungary was one of the last Member States of the EU to complete its legislative harmonization, with the Act on Complaints, Public Interest Reports and the Rules for Reporting Abuses promulgated on 25 May 2023. This study analyses the provisions of this law, which builds on similar legislation enacted in 2013. This reform is best illustrated by analogy with the renovation and extension of a building, whereby the existing non-functional building is upgraded, but behind the new cladding the existing walls continue to suffer from defects and shortcomings. It is evident that renovation carries more risks than the construction of a new building, as it is not possible to be sure how the old and the new will work together, and the solutions adopted must stand the test of time. Accordingly, this article describes how the legal instruments required by the Directive have been incorporated into the Hungarian legal system and how they interact with the existing provisions, while analysing the dilemmas posed by the new rules in comparison with previous practice. The study examines the instruments available in Hungarian labour law to protect whistleblowers, including protection against unlawful dismissal and protection offundamental rights. This will allow a comparison between the provisions of the law on harmonization and the possibilities of the labour courts to apply the law, as well as the experience gained so far and the directions of development of Hungarian case law.
Whistleblower protection has existed in Romania since 2004, with the law providing free choice as to the means to reveal breaches of the law. However, in most cases, the courts have decided that the persons revealing breaches of the law were not protected as whistleblowers, as there was no public interest in the disclosure. On the other hand, the European Court of Human Rights (ECtHR) has protected Romanian whistleblowers under the scope of the freedom of expression. In this context, the new regulation has attempted to balance the provisions of Directive (EU) 2019/1937 on the protection of persons who report breaches of Union law, the case-law of the ECtHR and the Council of Europe's conventions against corruption. The result is a complex regulation that might lead to uncertainty as to who qualifies for whistleblower protection and thus render the law less effective.
The creation of a national whistleblowing authority is desirable due to the need to increase public awareness in the field, strengthen the protection of persons reporting information on breaches of the law against retaliation, and forward external reports to appropriate bodies depending on the subject matter of the report. This article examines various institutional solutions regarding the central whistleblowing authority introduced in the Visegrad countries (Poland, Czech Republic, Slovakia and Hungary) plus France and Slovenia. The author argues that from the point of view of the effectiveness of whistleblower protection, it is necessary to ensure the independence of the central whistleblowing authority from the executive power and to establish a fully confidential reporting channel operated by specialized staff.
The case law of the European Court of Human Rights (ECtHR) developed a set of criteria which are relevant to assess an act of whistleblowing as a legitimate exercise of the right to freedom of expression. Most recently, the Grand Chamber judgment in the case of Halet v. Luxembourg provided updated standards to find a fair balance between the interests concerned, i.e., the interests of the employee to exercise the right to freedom of expression which typically coincides with the public interest in receiving relevant information on the one side and the interests of the employer on the other side. Remarkably, the EU Directive on the Protection of Whistleblowers recognizes the respective case law and takes into account the criteria established by the ECtHR.
The EU Whistleblower Directive (WBD) is widely perceived as a major step in motivating potential whistleblowers to come to the fore by granting them strong protection against the negative consequences of reporting. The perception by business enterprises and their managers is mixed, however. While internal reporting procedures have been recognized as effective compliance tools for some time, the Directive requires certain adjustments that seem at odds with traditional concepts of company law and its organizational rules for solving conflicts of interests and agency problems. Among these are, most notably, the unconditioned option to report externally and the protection of company directors who blow the whistle. Against this backdrop, this contribution endeavours not only to illustrate the irritating impact of the new whistleblowing regimes on the compliance architecture of companies, but also to suggest how to ease the frictions while taking the aims of the WBD and the national transposition laws seriously.
Academic internships have become a well-entrenched feature of the tertiary education landscape and are perceived to facilitate the transition into graduate employment. However, such experiences straddle the worlds of work and education, which begs the questions: should they be regulated as work, or learning, or through specific regulation and what role should universities have? This paper examines the educational and labour regulation applicable to academic internships in Australia, Finland and France and presents qualitative empirical insights examining how university staff in each jurisdiction manage academic internships in the context of local labour laws and educational regulations. It is concluded that national regulations in France regulate academic internships so as to achieve 'meaningful education' for participants, while in Finland the regulatory approach appears to be tailored to ensuring academic interns are engaged in 'decent work'. In contrast, Australia's current regulatory context appears inadequate to consistently ensure either of these outcomes, leaving academic interns at increased risk of having neither a meaningful educational experience, nor decent work, and being exploited. Universities in Australia and Finland have an increased role in guaranteeing quality internships. However, the preliminary empirical data suggests that this role may not be consistently fulfilled.
Forced labour, a pervasive issue within transnational production networks (TPNs), has been the subject of regulatory responses primarily centred around the use of corporate governance norms. These norms, whether through disclosure or due diligence laws, or in some common law countries, litigation seeking judicial recognition of a common law duty of care, are the sole legal mechanisms linking lead corporations to the working conditions in their TPNs. This article critically evaluates the potential of these corporate governance norms to provide effective remedies to forced labour workers, a topic of significant importance as it recognizes their agency rather than portraying them as passive victims. To this end, this article will appraise two legislative models, one implementing disclosure and the other due diligence, while examining the duty of care jurisprudential model, from the procedural and substantive criteria of effective remedies: the California Transparency in Supply Chains Act (CTSCA) disclosure regulation, the French vigilance law, and the Canadian common law duty of care. The analysis underlines a few, primarily procedural, improvements generated by disclosure and due diligence legislation, as well as the common law duty of care toward more effective remedies. These corporate governance norms increase available information and foster accessibility to some extent. However, substantive improvements brought by corporate governance norms are either constrained (France), hypothetical (Canada) or non-existent(California). Moreover, the corporate governance norms examined fail to provide effective judicial remedies for forced labour victims and may undermine potential lawsuits by providing corporations with a defence. We conclude with a discussion of the newly adopted German and Canadian laws.
This article explores how Transformative Constitutionalism influences the protection of labourrights amidst the challenges of the 4.0 Revolution in Latin America. Through a qualitativeanalysis of literature, legislation, and jurisprudence, the study evaluates the evolution of labourlaw in the face of digitalization and automation. Thematic analysis reveals significant develop-ments in adapting labour rights to emerging situations such as teleworking and digital platforms.A jurisprudential analysis of nine landmark cases from Latin American courts highlights how thejudiciary, guided by Transformative Constitutionalism, interprets and applies labour law toaffirm basic rights in non-traditional work contexts. In cases involving digital platforms in Chile,Argentina, Uruguay, and Brazil, the courts have recognized employment relationships andgranted labour protections to workers initially classified as independent contractors. The courts inColombia and Chile have also expanded labour rights to include reasonable accommodations forworkers with disabilities through telework, while recognizing the right to digital disconnection as afundamental right. However, challenges persist in effectively safeguarding workers in the digitaleconomy, as the courts may face constraints in responding to the full scope of changes in the worldof work. The article emphasizes the judiciary's crucial role in recalibrating legal frameworks toensure social and labour justice in an increasingly technological environment. The continuedevolution of national jurisprudence and legislation, informed by TransformativeConstitutionalism, is vital to keep labour rights at the centre of development.
Although the EU prohibition of direct and indirect discrimination under non-discrimination lawtheoretically applies to algorithmic recruitment, doubts exist about whether the prohibition can tacklealgorithmic recruitment discrimination in practical terms. This article examines two significantobstacles to dealing with direct discrimination identified in prior research: ambiguity in determiningwhether proxy discrimination constitutes direct discrimination, and the incapacity of job applicants tomeet the burden of proof. First, the analysis of the Court of Justice of the European Union (CJEU)case law suggests that the inextricable link doctrine could apply to proxies used by algorithmicrecruitment systems, assuming that the proxies are comprehensible and detectable. In cases in whichthe proxies remain unintelligible or invisible, it might still be possible to show that the protectedground determined the decision to impose less favourable treatment. Thus, proxy discrimination inalgorithmic systems could constitute direct discrimination. Moreover, the direct discriminationprohibition could deal with more proxy discrimination cases if the applicability of the Charter ofFundamental Rights of the European Union (CFREU) is acknowledged when an EU Regulationdirectly applies to algorithmic recruitment. Second, the research discloses that the burden of proofcould be interpreted in a way which allows applicants to establishprima faciecases of algorithmicrecruitment discrimination even if they lack access to detailed information about the workings of thealgorithmic recruitment system. The challenges of direct discrimination in algorithmic recruitmentmight not be insuperable, and the prohibition of direct discrimination should not be sidesteppedwhen analysing the discriminatory tendencies of algorithmic recruitment.
