Balancing employer and employee interests: legitimate expectations and proportionality under the Acquired Rights Directive

This thesis analyses the aims and objectives of the EU Acquired Rights Directive (ARD) in the context of the larger evolution of EU labour law itself. The thesis presents the overall goal of the ARD as that of striking an appropriate balance between the employer’s prerogative to transfer the business and the employee’s interest in not having the security of the job unduly threatened by such transfers. Given the current complexity and incoherence of the law regulating economic dismissals in the context of transfers, the central argument of the thesis is that there is a need for a clearer conceptual framework for defining and understanding the rights and obligations in the Acquired Rights Directive (ARD). It is suggested that the principles of legitimate expectations and proportionality are ideally adapted to play this role. In analyzing the teleology of the ARD based on these principles, this study not only assists in understanding and explaining the ARD itself, but also has wider implications for understanding the challenges facing European social policy in the field of employment protection. In its attempts to reconcile fundamental economic freedoms of employers on the one hand, and fundamental rights of employees on the other, the Court of Justice has frequently relied upon the proportionality principle to achieve a ‘fair balance’ between both parties. Following the interpretations of ‘proportionality’ in Viking and Laval, there is admittedly a fear that the proportionality balancing is likely to accord an almost absolute priority to the employers’ economic freedoms. The thesis is cognizant of this danger, and therefore advocates a ‘symmetrical’ approach to balancing. In this way the thesis offers some insight into the potential for the ARD to remain continuously effective in times of economic crisis. The study therefore finds reason to be optimistic about the prospects for the ARD and other standard-setting directives in the future of social Europe.

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