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7719 results in Intersentia

Page 276 of 386

  • Chapter 1 - Termination of the Employment Contract

  • from IV - TERMINATION 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 115-152

  • Summary

    SECTION 1. MANNERS OF TERMINATION IN ACCORDANCE WITH CIVIL LAW

    Sometimes the term ‘dismissal’ is used in the sense of ‘termination’ and therefore also includes the methods of termination according to civil law.

    The most common civil law techniques are:

  • - the dissolution of the employment contract;

  • - mutual consent;

  • - termination as a result of force majeure;

  • - nullity.

    • DISSOLUTION OF THE EMPLOYMENT CONTRACT

    Forms

    The term ‘dissolution’ refers to a complex of techniques, approached in different ways that lead to the termination of the contract, whether or not this is after judicial intervention.

    Legal doctrine usually distinguishes between the resolutory term, the judicial dissolution because of inadequacy, the express avoidance clause and the resolutive condition.

    Resolutory term

    A resolutory term is understood to mean the future and certain event on which the claimability and liquidation of the debt depend. The occurrence and completion of the event may not emanate from one of the contracting parties.

    In accordance with Article 32 Employment Contract Act it is permitted to include a resolutory term in an employment contract. Usually employment contracts with a resolutory term are fixed-term employment contracts. However, the legislator has seen to it that the use of such a provision is prohibited in certain situations.

    For instance, the parties are not allowed to include a clause in the employment contract introducing a resolutory effect when an employee reaches the retirement age. In addition, both the Civil Code and the Employment Contract Act forbid the conclusion of an employment contract for life.

  • Chapter 4 - Settlement of Industrial Disputes by the Courts

  • from V - INDUSTRIAL ACTION
  • Patrick Humblet, Marc Rigaux
  • Book:
    Introduction to Belgian Labour Law
    Published by:
    Intersentia
    Published online:
    13 December 2017
    Print publication:
    11 August 2016, pp 263-264

  • Summary

    SECTION 1. GENERAL OVERVIEW

    Since the mid-1980s, employers have occasionally turned to the courts to seek judicial intervention in industrial disputes. For example, when a plant is blocked by a picket line, the court is asked to forbid this on the grounds of, among other things, the right to work.

    The majority of legal scholars believe that it is not incumbent on the judiciary to settle industrial disputes. Such conflicts should be solved through the appropriate channels, for example conciliation bureaus.

    As a rule, employers never ask the courts to end an industrial dispute, but to stop certain forms of strike action which are held to violate subjective rights – qualified by some as ‘acts of violence’. Refusal to intervene would constitute a breach of Article 6(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms, and Article 14 of the International Covenant on Civil and Political Rights. Nowadays the courts’ intervention is no longer contested.

    SECTION 2. PROCEDURE

    The question arises as to which court has jurisdiction. Although labour tribunals would seem the most appropriate, employers usually appeal to courts of first instance. Employers generally apply for a summary procedure by means of ex-parte proceedings. They resort to such action because, unlike in the Netherlands, for example, they cannot prosecute the unions involved in collective action because these have no legal personality and because the identity of the members of the striking pickets is often unknown.

    Employers claim damages to ensure that striking pickets follow the opponent's instructions. Amounts vary.

    If the court follows the employer's reasoning, the former will order the picketers to end their action.

    This order is remitted to a bailiff. The latter takes the writ to the enterprise where the industrial dispute is taking place and serves it on the persons guilty of the alleged offence.

    To ensure compliance with the court order, the plaintiff will usually request the police to check the picketers’ identities. Refusal to comply with this request may result in the payment of damages.

  • In Cauda

  • Patrick Humblet, Marc Rigaux
  • Book:
    Introduction to Belgian Labour Law
    Published by:
    Intersentia
    Published online:
    13 December 2017
    Print publication:
    11 August 2016, pp 265-266

  • Summary

    When this book was written in the spring of 2016, it became known that within the government there were plans to reform labour law thoroughly. In this reform the emphasis would be on more flexibility on the part of the employee (especially) with regard to working hours, a change of the rules and regulations with regard to telework and dismissal law. The termination pay will probably be replaced by a transition pay which is meant to support the employee in finding a new job. However, it is still unclear how these principles will/can be transposed into legislation.

  • Chapter 2 - Settlement of Industrial Conflicts by Mediation and Conciliation

  • from V - INDUSTRIAL ACTION
  • Patrick Humblet, Marc Rigaux
  • Book:
    Introduction to Belgian Labour Law
    Published by:
    Intersentia
    Published online:
    13 December 2017
    Print publication:
    11 August 2016, pp 255-258

  • Summary

    SECTION 1. CONCILIATION AND MEDIATION

    Mediation means settling a dispute with the help of an objective third party. It usually covers dispute resolution procedures such as arbitration and reconciliation.

    In arbitration, a third person is asked to issue an opinion on the grievances of the conflicting parties on the basis of the information given to him. His opinion is legally binding on the two parties.

    In the case of conciliation, the intervention of the third party or mediator goes much further: he is expected to reconcile the conflicting parties.

    Arbitration is almost never used as a dispute resolution mechanism in Belgian industrial relations. The legislator and the social partners have clearly opted for conciliation.

    SECTION 2. CONCILIATION PROCEDURES

    As in most other Western European legal systems, Belgium has no legal conciliation framework for the uniform settlement of industrial disputes.

    However, in most sectors the social partners have developed dispute resolution procedures. These are outlined in collective labour agreements or the rules of the joint committees and their conciliation and mediation services.

    Conciliation procedures may figure in purely procedural collective labour agreements or in collective agreements establishing the legal status of the union delegation. In certain branches of industry the procedures are linked to the social peace obligation clause included in the collective labour agreement establishing the setting up and financing of a sectoral social security fund. If workers fail to respect the procedure in the case of an industrial dispute, employers stop their contributions to the said fund.

    Most of the of conciliation procedures are similar. As a general rule, they consist of the following elements:

  • meeting between the union delegation and the head of the enterprise;

  • full-time union officials and employer representatives are informed of the negotiations at enterprise level;

  • intervention of the joint committee's conciliation bureau;

  • negotiation in the joint committee;

  • a second attempt at conciliation;

  • notice of strike or lock-out; and

  • intervention by the official (social) conciliator.

  • Chapter 1 - Historical Overview

  • 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 177-178

  • Summary

    The provisions on the freedom of work and industry set out in the Le Chapelier Law were upheld in Article 6 of the Law of 22 Germinal year XI and subsequently adopted in the Napoleonic Penal Code of 1810.

    Article 414 of the Penal Code penalised any employer coalition devised to lower wages, with prison sentences ranging from six days to one month, and a fine of between 200 and 3,000 francs. Work stoppages and preventing persons willing to work from working were prohibited by Article 415. Violations were punished with one to three months’ imprisonment, and leaders risked two to five years’ imprisonment. Such penalties were also imposed by Article 416 on employees who threatened employers and their representatives with industrial action.

    The Governmental Decree of 16 October 1830 lifted all bans on the freedom of association. This was confirmed by Article 27 of the Constitution, which grants the right to enter into an association or partnership, a right that is not subject to any preventative measures. The Penal Code of 1810 nevertheless retained Articles 414, 414 and 416 because politicians in the 1830s were concerned with political freedom rather than with freedom of association.

    The Law of 31 May 1866 abolished these Articles and allowed workers to associate and set up unions. However, the newly added Article 310 of the Penal Code forbade any form of physical or moral coercion which might injure the freedom of work and industry; picketing remained unlawful, thus making effective union action impossible.

    On 11 June 1919 the Minister of Justice, Emile Vandervelde, introduced a government bill abolishing Article 310 of the Penal Code, but this expired when Parliament was dissolved on 13 January 1920. It was re-introduced after being amended to cover not only the right to organise and set up a union, but also freedom of association in the broad sense of the word, leading to the Law of 24 May 1921 on the protection of freedom of association. A second law passed on the same day abolished Article 310 of the Penal Code.

  • Set-off in the French Reform of the Law of Obligations: a Tale of Missed Opportunities?

  • Edited by Sophie Stijns, Sanne Jansen
  • Book:
    The French Contract Law Reform: a Source of Inspiration?
    Published by:
    Intersentia
    Published online:
    15 December 2017
    Print publication:
    05 August 2016, pp 201-208

  • Summary

    In this short paper, I would like to explain why the rules on set-off in the reformed French Civil Code (published 11 February 2016), are in many respects a missed opportunity to modernise the French law on that topic, even if some interesting innovations have taken place.

    The role and definition of set-off

    Whereas the old Code civil did classify set-off as a mode of extinction of obligations by its position in Chapter V (of Title III) entitled “De l'extinction des obligations”, the new provisions start with an article containing a definition of set-off as the simultaneous extinction of reciprocal obligations between two parties (new Article 1347 CC).

    First of all, it is unfortunate to add another definition instead of directly formulating the rule as the old Article 1289 CC did. Codes should contain as few definitions as possible; the task of codes is not to define things that are by their nature only instances of rules and not a description of facts; their task is to contain good, operative rules. Definitions only make sense in order to avoid having to repeat certain things over and over again in rules.

    Secondly, the definition is, as nearly all definitions in French codes, incomplete. It does not include the different elements and it does not spell-out the different roles of setoff. Modern doctrine stresses that set-off is not merely a mode of payment, i.e. extinction of obligations, but also a mode of getting paid, i.e. of enforcement of a right to payment and in anticipation thereof a security for the creditor. The security function of set-off is completely missing. If we turn e.g. to the EU Insolvency Regulation, that role is precisely stressed, esp. in consideration (70): “If a set-off of claims is not permitted under the law of the State of the opening of proceedings, a creditor should nevertheless be entitled to the setoff if it is possible under the law applicable to the claim of the insolvent debtor. In this way, set-off would acquire a kind of guarantee function based on legal provisions on which the creditor concerned can rely at the time when the claim arises”.

  • The Measure of Damages in the French Contract Law Reform - Lessons from far more Inspiring Systems

  • Edited by Sophie Stijns, Sanne Jansen
  • Book:
    The French Contract Law Reform: a Source of Inspiration?
    Published by:
    Intersentia
    Published online:
    15 December 2017
    Print publication:
    05 August 2016, pp 157-200

  • Summary

    Belgian Civil Code

    Need for innovation

    NECESSITY OF MODIFICATION OF RULES ON CONTRACTUAL DAMAGES – The Belgian Civil Code can still be used by creative case law, but is somewhat out of date. This seems to be particularly the case as regards the measure of damages for breach of contract. In a recent comparative study on contractual remedies, however, an Australian professor praised French contract law as it stood in 1804: “Whereas French contract law was extremely well developed by 1804 when the Code civil was first published, English contract law in contrast was still astonishingly undeveloped.” Would this again be valid as of 1 October 2016, with the entry into force of the new French contract law as regards the rules on the quantification of damages for breach of contract? Should the Belgian legislator draw inspiration from the new French legal framework on damages for breach of contract?

    CURRENT PROVISIONS ON THE MEASURE OF DAMAGES FOR BREACH OF CONTRACT (ARTICLES 1149–1153 CC) – In Belgium the ordinary measure of damages for breach of contract is still governed by the Articles 1149–1153 of the Code civil. Article 1149 CC only provides a vague guideline for the basic measure of compensation: the aggrieved party is entitled to compensation for the loss suffered, including loss of profit. In addition, the Civil Code recognises some limits on that liability. However, those limits of unforeseeability (Article 1150 CC) and indirectness (Article 1151 CC) of harm caused by a breach of contract have been hollowed out in practice. Do these articles still serve any purpose? In this context the subsequent question arises as to why the duty to mitigate and the recoverability of non-pecuniary loss and lost chances are not yet enshrined in Belgian provisions on the measure of damages for breach of contract? With Belgium swiftly moving closer to a new Belgian Civil Code, the French reform should be considered in detail from the perspective of contractual damages.

  • Introduction

  • Edited by Sophie Stijns, Sanne Jansen
  • Book:
    The French Contract Law Reform: a Source of Inspiration?
    Published by:
    Intersentia
    Published online:
    15 December 2017
    Print publication:
    05 August 2016, pp 1-6

  • Summary

    INTRODUCTION

    This book is the result of the Contract Law Workshop of the 20th Ius Commune Conference held 26–27 November 2015. The theme of this Workshop was: ‘The French Contract Law Reform: a Source of Inspiration?’ This theme was carefully chosen after the French projet d'ordonnance about contract law, the general regime of obligations and the proof of obligations appeared in February 2015. A few months after our workshop, in February 2016, the fi nal version of the ordonnance was published. The contributions in this book are the proceedings of the presentations of this conference. Since the conference in November 2015, all authors have incorporated comments on the fi nal version of the ordonnance. Whereas Van Loock briefly sketches the antecedents and the outcome of the reform, the other authors tackle each specific topics of the reform that surprised and/or excited the legal community. In what follows, we will introduce the contributions of Van Loock, Pannebakker, Peeraer, Leone, Lutzi, Oosterhuis, Jansen, Verkempinck, Storme, and Mahé to the reader.

    As already mentioned, the contribution of Van Loock gives a broad overview of the pathway of the French reform. Firstly, it scrutinises the historical antecedents of the reform, the incentives for reform and the first reform projects (the Catala project, the Terré project and a governmental reform proposal). Furthermore, the author discusses and questions the legitimacy and the practicability of the choice to carry out the reform by way of an ordonnance (which involved a significant delegation of the legislative competences to the government) instead of going through the ordinary parliamentary procedure. The contribution also gives a short overview and appreciation of various innovations of the (projet d’) ordonnance. Moreover, he points out the differences between the draft and the final version of the articles, showing that the drafters of the final ordonnance have taken into account propositions received during the public consultation period. He concludes with lessons for a possible Belgian reform of the law of obligations. Indeed, the lessons learnt from the French reform will probably have to be taken into account soon.

  • A Tale of Novelty and Continuity: Exploring the Future Judicial Control of Employment Contracts in the French Contract Law Reform

  • Edited by Sophie Stijns, Sanne Jansen
  • Book:
    The French Contract Law Reform: a Source of Inspiration?
    Published by:
    Intersentia
    Published online:
    15 December 2017
    Print publication:
    05 August 2016, pp 73-88

  • Summary

    Introduction

    The reform of the law of obligations recently approved by the French government introduces a general remedy against “significantly imbalanced” terms in non-negotiated contracts. According to proposed Article 1171 CC “in a contract of adhesion, any term which creates a significant imbalance between the parties’ rights and obligations is considered as never written”. By virtue of its position, among the general rules on contractual content, the provision would apply to all non-negotiated contracts, including those which are not specifically regulated within the civil code.

    This chapter explores the new rule's potential impact on one specific domain, namely the judicial control of employment (and, potentially, employment-like) contracts. The rule echoes two existing provisions belonging to the specialised domains of consumer and competition law, but the application to labour law that comes with its scope is unprecedented, and the option that the proposal embraces has not been discussed thoroughly in the French literature – although some authors, occasionally, had invoked or foreshadowed the possibility. At the same time, the paper will show, on occasion French courts already engage in activities that might resemble unfair terms control- be it by applying general contract law or labour law-specific tools.

    If some form of control of specific terms in employment contracts under open norms is already in place in France, in order to assess the likely impact of the reform on this field, it is important to investigate the similarities and differences between the mechanisms in place and the one to come. Since, as said above, the proposed rule appears to resemble very strongly existing rules targeting unfair terms (clauses abusives) in consumer and commercial contracts, there may be reasons to believe that some commonality is to be expected between all these mechanisms – the one formally in place in the special codes, the one to come with the reform, and the one(s) to be found in the law in practice as developed by French labour courts.

  • Pre-Contractual Phase: Reflections on the Attractiveness of the New French Rules for the Parties to International Commercial Transactions

  • Edited by Sophie Stijns, Sanne Jansen
  • Book:
    The French Contract Law Reform: a Source of Inspiration?
    Published by:
    Intersentia
    Published online:
    15 December 2017
    Print publication:
    05 August 2016, pp 29-48

  • Summary

    Introduction

    This paper addresses the new rules on the pre-contractual phase and reflects upon the following question. To what extent do these rules contribute to the attractiveness of the French law for parties to international commercial transactions?

    The ordonnance for the reform of the law of contract, the general regime of obligations, and proof of obligations (the ordonnance) modernises French law. The reform aims inter alia to make the French legal system more influential and attractive at international level. Recent empirical findings on the choice of law applicable to contract have contended, indeed, that French law is not the regime most favoured by parties to international commercial transactions.

    The regulation of contractual negotiations, namely Articles 1112, 1112–1, 1112–2, 1123 and 1124 of the ordonnance, is one of the areas subject to modernisation. The provisions established by the Code Napoleon of 1804 were underpinned by the model of simple, discrete transactions and, therefore, did not expressly deal with the contractual negotiations. By contrast, the ordonnance establishes a more sophisticated system of regulation.

    This sophistication reflects firstly, the evolution of French case law. Since the adoption of the Napoleonic Code two centuries ago, French courts have come some distance in interpreting its provisions in the context of practical changes. Over the years of application and interpretation of the Code civil, French courts have developed standards of conduct to be respected by the parties during negotiations. The second point underpinning the ordonnance is the complexity of contract formation in practice. Legal scholars, pioneered by the US relational contract theorists at the end of the last century, have described the increasing gap between legal theory and practice. Their arguments have not gone unheard in France. However, many of these legal writings have been criticised for offering few sufficiently pragmatic legislative solutions. Thirdly, the ordonnance draws some inspiration from the existing international soft law instruments.

Page 276 of 386