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7719 results in Intersentia

Page 274 of 386

  • An Assessment of Theoretical Proposals to Deal with Heterogeneous Small Samples

  • from Part III - Measuring Legal Certainty
  • Edited by Bertrand du Marais, David Marrani
  • Book:
    Legal Certainty in Real Estate Transactions
    Published by:
    Intersentia
    Published online:
    21 September 2018
    Print publication:
    16 August 2016, pp 109-120

  • Summary

    The studies we conducted rapidly faced a big issue. Was it possible to make reliable quantified comparisons of differences in performance between notaries and non notaries legal systems using heterogeneous small samples? The underlying issues at stake concern different levels.

    The first one is related with the cost of data collection. Indeed, to be relevant the traditional quantitative methods would work on panel data but require collecting detailed data for at least thirty individuals per country. This means having sufficiently standardized the methodology, but the previous chapters of this book show that this approach may be too simplistic and that it requires a very important preliminary work to comprehensively understand the legal systems. It is time and money consuming. In addition, standardizing data collection is not an easy task. Hence, it is necessary to achieve a trade-off between two conflicting objectives: defining sufficiently harmonised data to enable comparisons to be meaningful – comparability criterion – and defining data that are sufficiently representative of local conditions – representativeness criterion –. Then comes the actual step of collecting a sample whose size is sufficient enough.

    The second issue is a practical one and relates to the statistical treatment of data. Indeed, working on small samples implies that the statistical properties necessary for using the usual estimators that are based on the central limit theorem are not satisfied. Traditional inferences used to assess the magnitude of the observed effects cannot be performed rigorously. We must therefore implement alternative methodologies.

    We were not the only researchers facing these challenges. They oft en arise in public policy analysis when defining targeted measures is required. Fine tuning supposes to dispose of disaggregated information at an appropriate level. The institution which has developed the most such approach is the World Bank, particularly in the context of programs destined to diminish poverty. Notably, the Millennium Declaration adopted by the member countries of the United Nations in 2000 that called for the reduction of poverty by half in a worldwide scale by the year 2015.

    The methodology developed by researchers at the World Bank belongs to the so-called small area estimations methodologies. It consists in fitting statistical models in order to be able to conduct statistical analysis for areas where the sample size of the survey data is not sufficient for generating accurate estimates.

  • Introductory Remarks on Legal Security: the Approach of French and European Law

  • from Part III - Measuring Legal Certainty
  • Edited by Bertrand du Marais, David Marrani
  • Book:
    Legal Certainty in Real Estate Transactions
    Published by:
    Intersentia
    Published online:
    21 September 2018
    Print publication:
    16 August 2016, pp 105-108

  • Summary

    In everyday language, “legal security” refers to the supposed stability and predictability of legal solutions. Law is there to steer or, more modestly, to accompany the action of institutions and individuals functioning or living in society. Among its objectives is the definition of a general framework that is strong enough to allow actors to know in advance what they are allowed or not allowed to do.

    In law, and in particular in French law, which is strongly influenced by European integration (COE – UE), legal security can have two major benefits:

  • – It can have the value of a “legal principle”, in which case we talk of the “principle of legal security”; here, legal security plays an extremely prominent prescriptive role: as we shall see, it serves to maintain existing legal systems and encourages the development of new ones;

  • – It is also a description tool (naturally, one that is not without a prescriptive dimension even if, in this case, its role is less prominent), in the sense that it sets out to examine the content of the rule of law with regard to the security that it is likely, or unlikely, to offer to those to whom it applies.

    • These two meanings of legal security, which are mutually complementary, deserve closer attention if they are likely to apply to the working hypothesis chosen by this research programme: real estate transactions.

    Legal security: a prescription tool

    Prescribing to establish the basis for the development of new legal systems: the European example

    Here, the example of the European Union can be taken, showing how the “framework principle” of legal security – which covers a very large number of sub-principles (acquired rights, predictability of solutions, non-retroactivity, public nature of acts, legitimate confidence, etc.) – has been used from a very early stage by the Court of Justice (ECJ, April 6, 1962, Bosch, no. 13/61) to oversee the EU's standard-setting activity.

    In a comparable manner, see also the jurisprudence of the ECHR (ECHR, June 13, 1979, Marckx v. Belgium).

    Here, legal security plays a cardinal role. It supports the emergence of a European legal model (EU or COE) which, very early on, sought to establish itself based on a principle of legality or “community of law”.

  • Chapter 3 - Conditions of Validity

  • from II - CONCLUDING THE CONTRACT
  • Patrick Humblet, Marc Rigaux
  • Book:
    Introduction to Belgian Labour Law
    Published by:
    Intersentia
    Published online:
    13 December 2017
    Print publication:
    11 August 2016, pp 23-26

  • Summary

    SECTION 1. COMPETENCE

    MINORS

    A minor – i.e. anyone who has not reached the age of 18 – lacks the legal capacity to conclude a contract of employment on his/her own. He/she must obtain the explicit or tacit permission from his/her father, mother or guardian. Failing this permission or in the event of refusal, the juvenile court may grant authority at the request of the public prosecutor or a relative. A father, mother or guardian will be heard or summoned prior to this.

    MARRIED PERSONS

    Article 216 of the Civil Code gives each spouse the right to exert a profession without the approval of the other spouse.

    However, if a spouse is of the opinion that this causes serious damage to his/ her moral or material interests or to those of minor children he/she has the right to appeal to the Court of First Instance, and in urgent cases to the President of this court.

    The court may make the professional activity dependent on a preliminary change of the marriage settlement of the spouses, for instance, when the chosen activity is financially risky for a partner.

    GUARDIANSHIP

    An adult who, because of his/her health is incapable, either fully or partially, whether or not temporarily, of defending his/her interests without assistance or other protective measures, can be placed under protection, if and to the extent the protection of his/her interests requires this. This means that in certain cases after a decision by the Justice of the Peace a person can only conclude an employment contract after authorisation or assistance by a guardian and this under penalty of nullity.

    SECTION 2. VALID CONSENT

    Error, deceit and violence may affect the validity of the permission. In such cases the general principles of contract law are applied.

    ERROR

    Error may be invoked to ask for the annulment of the contract. In labour law matters error with regard to the cause of the agreement or the nature of the job hardly ever occurs except for errors concerning the capacities of the persons recruited.

    Nonetheless, the judge will not be inclined to accept error invoked by the employer since the latter has enough means at his disposal to test the capacities and qualifications of the persons before proceeding to recruitment.

  • Chapter 2 - The Right to Organise

  • from I - FREEDOM OF ASSOCIATION
  • Patrick Humblet, Marc Rigaux
  • Book:
    Introduction to Belgian Labour Law
    Published by:
    Intersentia
    Published online:
    13 December 2017
    Print publication:
    11 August 2016, pp 179-180

  • Summary

    SECTION 1. ARTICLE 27 OF THE CONSTITUTION

    Article 27 of the Constitution provides that citizens have the right to enter into an association or partnership; this right cannot be subject to any preventative measures. In principle, it covers all social activities provided they do not breach public order and/or morality, and therefore also covers the right to set up a union or professional association.

    SECTION 2. THE FREEDOM OF ASSOCIATION ACT OF 24 MAY 1921

    The Freedom of Association Act of 24 May 1921 governs, firstly, the protection of the freedom of association, and secondly, the consequences of joining an association. Although general in scope and not confined to the right to set up a union, it is clear that the legislature of 1921 sought to recognise and regulate this freedom.

    The law guarantees both positive and negative freedom of association.

    Positive freedom of association grants persons the right to set up and join a professional association (Articles 1, 2 and 3). Negative freedom of association is a person's right not to join a professional association (Articles 1, 3 and 4).

    The principle that no one can be forced to join an association is a public order issue. The contracting parties cannot relinquish this right, either by individual or by collective consensus.

    Any individual or collective agreement containing a clause breaching this principle is regarded as void.

    In addition, the legislature imposed a penalty under criminal law for violating freedom of association, in this case the right to join a union.

    Any person found guilty of forcing people to join, or preventing them from joining an association through acts of violence, threats or assault, or by threatening them with dismissal or damage to their family, person or assets (Article 3), is punishable by prison sentences of eight days to one month and a fine of € 50 to € 500. The same penalty is imposed on all those who maliciously and purposefully violate the freedom of association by subjecting the conclusion, execution or continued existence of an employment or service contract to affiliation or non affiliation of a professional association (Article 4).

  • Chapter 5 - Types of Employment Contracts

  • from II - CONCLUDING THE CONTRACT
  • Patrick Humblet, Marc Rigaux
  • Book:
    Introduction to Belgian Labour Law
    Published by:
    Intersentia
    Published online:
    13 December 2017
    Print publication:
    11 August 2016, pp 29-38

  • Summary

    Employment contracts can be subdivided on the basis of three criteria:

  • - the period for which the agreement is concluded;

  • - the specification of the work to be carried out;

  • - the nature of the work or the qualification of the person who has to carry it out.

    • Furthermore, there are also replacement contracts and employment contracts for part-time work.

    SECTION 1. PERIOD FOR WHICH THE EMPLOYMENT CONTRACT IS CONCLUDED

    GENERAL

    Depending on the period for which the employment contract was concluded a distinction can be made between contracts for a fixed period and employment contracts for an indefinite period.

    In the context of an open-ended employment contract no time limit is set. In principle both parties can terminate the agreement subject to the legal provisions.

    The essence of a fixed-term employment contract is that the parties lay down the length of the agreement beforehand. The contract automatically ends on the expiry date, i.e. the date or the day specified by the parties at the moment the contract was concluded. In principle, neither the employee nor the employer may unilaterally terminate a fixed-term employment contract before the term has expired.

    In implementation of Directive 1999/70/EC fixed-term contract workers may not be treated less favourably than comparable permanent workers.

    CONSECUTIVE FIXED-TERM EMPLOYMENT CONTRACTS

    Employment contract law provides more guarantees in terms of job security to open-ended contracts than to fixed-term contracts. For instance, the provisions with regard to suspension and termination of the contract are, as a rule, more favourable to employees with open-ended contracts. As a result, in the past employers sometimes resorted to a practice which consisted of concluding consecutive fixed-term contracts, instead of concluding one open-ended contract.

    The legislator has tried to remedy this shortcoming by adding a provision in this respect to the Employment Contract Act, more specifically, Article 10 Employment Contract Act.

    When parties have concluded several consecutive fixed-term employment contracts without there having been an interruption caused by the employee, they are considered to have concluded an open-ended contract; except when the employer proves that these contracts were justified because of the nature of the job or because of another legitimate reason.

  • Chapter 2 - Liability

  • from III - EMPLOYMENT
  • Patrick Humblet, Marc Rigaux
  • Book:
    Introduction to Belgian Labour Law
    Published by:
    Intersentia
    Published online:
    13 December 2017
    Print publication:
    11 August 2016, pp 57-60

  • Summary

    SECTION 1. THE (EXTRA-)CONTRACTUAL LIABILITY OF THE EMPLOYEE VIS-A-VIS THE EMPLOYER

    CONTRACTUAL LIABILITY

    Article 18 Employment Contract Act states in its first and second paragraphs that the employee is liable to the employer and a third party for gross errors, deceit and minor errors occurring frequently rather than occasionally. In the third paragraph of the same provision the principle is upheld that deviations from the legal liability rule are invalid except when these occur by means of a generally binding collective agreement. However, this kind of deviation may only relate to the employee-employer relationship.

    The last paragraph of Article 18 Employment Contract Act states that the compensations and damages to be paid by the employee to the employer as a result of an agreement with the employer or as a result of a judicial decision may only be deducted from the wages by the employer in accordance with the terms of the Wage Protection Act.

    The first requirement for the application of the liability restriction is that this concerns employees. So the rule only relates to the liability of the employee in respect of the employer, and not the other way round.

    The employee's liability is only limited when he/she commits an error in the implementation of the employment contract, i.e. insofar as he/she finds himself/ herself under the authority of the employer. Article 18 Employment Contract Act cannot be applied when the court holds that the facts show that the employee did not find himself/herself under the authority of an employer at the time the mistake was made. In the latter case the liability is judged on the basis of the principles of ordinary law.

    Gross error, deceit, frequently occurring minor error: the legislator has limited the employee's liability to gross error, deceit or intentional error and the frequently occurring minor error.

    Intentional error is usually defined as a fault committed to cause damage. According to a different view an intentional error is the conscious and intentional non-observance of a contractual obligation or a non-contractual generally applicable norm. Common to both views is the presence of an intentional element.

  • Chapter 6 - The Content of the Contract

  • from II - CONCLUDING THE CONTRACT
  • Patrick Humblet, Marc Rigaux
  • Book:
    Introduction to Belgian Labour Law
    Published by:
    Intersentia
    Published online:
    13 December 2017
    Print publication:
    11 August 2016, pp 39-42

  • Summary

    The parties may include certain arrangements in the employment contract. Some clauses are explicitly regulated by the legislator, other ones are explicitly forbidden.

    SECTION 1. PROHIBITED CLAUSES

    AVOIDANCE CLAUSES

    Clauses stating that marriage, motherhood or reaching the legal or conventional retirement age terminate the contract are invalid.

    Also invalid are clauses that give the employer the right to terminate the employment contract without notice or before the term has expired when the employee's wages are garnished because of a credit agreement established by the Law of 12 June 1991 regarding consumer credit.

    THE MODIFICATION CLAUSE

    Sometimes parties agree that the employer has the right to change the terms of the contract unilaterally. Executive staff members, for instance, may agree to be employed ‘anywhere in the world’. Such a clause is null and void. With this the legislator wanted to avoid employees from being at the mercy of the entrepreneur. However, parties may agree to employment in a limited number of locations. This is not a case of unilateral modification of the contract. At the time the contract is concluded the employee already knows where he/she may end up.

    SECTION 2. CONDITIONS LAID DOWN IN THE EMPLOYMENT CONTRACT ACT

    PROBATION CLAUSE

    A probation clause is a clause in the contract of employment enabling the employer to assess the employee's suitability or enabling the employee to assess the suitability of the job. On 1 January 2014 this clause was removed from law except for a few categories of workers.

    GUARANTEE DEPOSIT

    An employee can only be asked to provide a guarantee deposit under the provisions laid down in a collective labour agreement. If no collective agreement has been concluded at enterprise level or at the level of the joint (sub-)committee, the provisions of Collective Agreement No. 41 apply. To prevent the employer from capitalising these deposits there are very strict rules.

    ARBITRATION CLAUSE

    See infra.

    COMPETITION CLAUSE

    See infra.

    THE DELCREDERE CLAUSE

    See infra.

    SECTION 3. CLAUSES NOT REGULATED BY THE LEGISLATOR

    Article 6 Employment Contract Act determines that clauses that are contrary to the provision of this law and its implementing orders are invalid insofar as these are intended to curtail the employee's rights or to aggravate his/ her obligations. As a result, a job applicant cannot renounce his/her legal rights.

  • Chapter 2 - Employers’ Associations

  • from II - TRADE UNIONS AND EMPLOYERS’ ASSOCIATIONS
  • Patrick Humblet, Marc Rigaux
  • Book:
    Introduction to Belgian Labour Law
    Published by:
    Intersentia
    Published online:
    13 December 2017
    Print publication:
    11 August 2016, pp 185-186

  • Summary

    SECTION 1. STRUCTURES

    Employers’ associations also distinguish between industrial and multi-industry organisations.

    Employers join the professional association of the branch of industry in which they are active. These associations are geographically organised at local, regional and national levels.

    At the national level, industrial federations are centralised by the multi-industry organisation. These federations, rather than individual employers, are members of the multi-industry organisation.

    The Belgian Federation of Enterprises groups the different industrial organisations, such as Agoria (metal sector), Fedustria (a.o. textile sector), Essencia (chemical sector) and CEPA (port of Antwerp).

    The interests of the self-employed are defended by UNIZO and UCM; the agricultural employers are united in the Boerenbond and the Federation Wallonne de l'Agriculture.

    Apart from these structures there are some important regional employers’ organisations, such as the Vlaams netwerk van ondernemingen and the Union Wallone des Entreprises. ETION and the Association chretienne des dirigeants et cadres319 organise employers on the basis of their (Christian) ideology.

    Although the Belgian Federation of Enterprises and its main affiliated federations are actually associations just like representative workers’ organisations, a certain number have adopted either the status of professional association or non-profit organisation.

    Provided they are representative, employers’ organisations can also participate in social consultations. Indeed, the provisions of Article 3 of the Collective Labour Agreements Act apply to both employers’ associations and unions. This means that only multi-industry organisations set up at national level with representatives in the National Economic Council and the National Labour Council are representative. Professional organisations can be awarded representative status on the recommendation of the National Labour Council. They do not have to meet the same quantitative criteria as employers’ associations.

    SECTION 2. INTERNATIONAL EMPLOYERS’ ORGANISATIONS

    The Belgian Federation of Enterprises is a member of the International Organisation of Employers. At the European level, it is affiliated to Businesseurope, which defends employers’ interests in the European Union.

    UNIZO and UCM are members of the European Association of Craft, Small and Medium-sized Enterprises. The employers of the semi-public sector are united in the European Centre of Employers and Enterprises providing Public Services.

    A lot of sectoral employers’ organisations also reside under a larger European or international structure.

  • Chapter 2 - Subordination

  • from I - THE CONTRACT OF EMPLOYMENT
  • Patrick Humblet, Marc Rigaux
  • Book:
    Introduction to Belgian Labour Law
    Published by:
    Intersentia
    Published online:
    13 December 2017
    Print publication:
    11 August 2016, pp 5-10

  • Summary

    SECTION 1. MEANING

    A prerequisite for the existence of an employment contract is an employee carrying out work for remuneration under someone's authority, i.e. in subordination: the employer has the right to give orders and the employee has to obey. The way in which the authority is expressed and/or the extent to which it is used is of less importance for the existence of an employment contract. It suffices that the employer has the right to exert authority in order to decide that there is indeed a contract of employment. It is precisely this power relationship that distinguishes work carried out within the framework of an employment contract and work done outside such a framework. The two other elements – work and wages – are also present in the case of self-employed activities. Here, too, we are dealing with work that is remunerated in some way. So it is the relationship of subordination that determines the scope of employment contract law. However, to a large extent this criterion is also the basis for the applicable social security scheme. Article 1 of the Social Security Act stipulates that this law applies to employees and employers bound by an employment contract. Accordingly, through the reference to the employment contract the relationship of subordination is also used for the application of the social security legislation for employees. On the other hand, the existence of an employment contract rules out the application of the social security legislation for self-employed persons and this as a result of the fact that pursuant to the legislation regarding the social status for self-employed persons this system only applies ‘in the absence of an employment contract’. In principle, this means that the employment status determines the social security status and not vice versa. Only if the social security qualification deviates explicitly from the qualification under labour law, will this qualification take precedence. However, in that case it remains limited to the application of the social security regulations.

Introduction to Belgian Labour Law
  • Patrick Humblet, Marc Rigaux
  • Published by:
    Intersentia
    Published online:
    13 December 2017
    Print publication:
    11 August 2016
  • This book gives an overall picture of the principles of Belgian labour law, i.e. employment law as well as industrial relations law. It is intended for all those who want to become acquainted with Belgian labour law including foreign law firms, entrepreneurs who want to invest in Belgium, etc. For this reason the book focuses on topics that are of practical relevance.The authors not only describe and analyse the legal aspects of labour relations, but also indicate developing trends in Belgium.The book provides an up-to-date survey of the legislation that is both sufficiently detailed and usefully brief to answer most questions likely to arise in a legal setting.The authors describe all important details of the law governing working hours and wages, benefits, trade union activity, employers' associations, collective bargaining, industrial disputes, and much more.Building on a clear overview of labour law and industrial relations, the book offers practical guidance on which sound decisions in the labour law context may be based. Patrick HUMBLET is Professor of Labour Law at Ghent University. Marc RIGAUX is Professor emeritus at the Faculty of Law at Antwerp University. He was Dean of the Law Faculty from 1989 to 1993. Since 2002 he has been an assessor at the Council of State.

  • Chapter 2 - Principles of Contract Law in the Context of the Employment Contract

  • from II - CONCLUDING THE CONTRACT
  • Patrick Humblet, Marc Rigaux
  • Book:
    Introduction to Belgian Labour Law
    Published by:
    Intersentia
    Published online:
    13 December 2017
    Print publication:
    11 August 2016, pp 21-22

  • Summary

    SECTION 1. AUTONOMY OF WILL

    Parties are entirely free to give a contract the content they want. In principle this also applies to the individual contract of employment.

    However, whereas in the past the individual employment relationship was almost completely regulated by the parties, it is now the subject of extensive and specific regulations in legislation, collective labour agreements and work rules.

    SECTION 2. CONSENSUALISM

    Consensualism presupposes that prior to the conclusion of the agreement mere consent by the parties suffices. In the context of the employment contract this principle is given another content. Consensualism does not play a role in fixed term employment contracts, replacement contracts etc. In all these cases the law imposes certain formal requirements. The aim of these formal requirements is not only to make it easier to produce evidence, but also to protect the employee.

    SECTION 3. THE BINDING EFFECT OF THE CONTRACT

    The principle of the binding effect of the contract (Article 1134 Civil Code) also applies to employment contract law. Once the contract has been concluded neither of the parties may make any changes.

    SECTION 4. IMPLEMENTATION OF THE AGREEMENT BONA FIDE

    The employment contract is expected to be implemented in good faith.

Page 274 of 386