Publication Date:
2010
abstract:
The book, published in the series directed by Oronzo Mazzotta, is the development of a research and study’s course on the “inderogabilità” in the labour law, from which the author will analyze critically the profound changes affecting the 'identity of the discipline putting in a shadow cone the principle of protection of the weaker party.
Reiterating the validity and the essence of labor law as an "unequal" right, the author verifies how come out significant new methods of protection based no longer on the "norma inderogabile" but on the role played by the judge, although considering the difficulties of the increased influence of the jurisdiction in the recognition and protection of rights.
In the first part of the work, the author retraces the evolutionary parable of the legal discourse and the paradigm of “inderogabilità”, the instrument of choice to protect the weaker party, since it was established like an effect contained in the labour rules to its crisis. The flexibility is in this perspective, the priority area in which new technical standards and produces an irreparable rift in the discourse on the “inderogabilità”. But it is precisely from the realization of this rift that the author identifies, as early as the second chapter of the book, in case law a factor of resistance or at least a factor conditioning, giving rise to interpretations directed by the "restrictions’ system ".
In the development of the book, the author broadens its horizons to new models in prospect of flexibility’s containment, addressing in a critical way the development of the flexicurity’s project both in the context of legal discourse and of European Union policies. In the Community legal experience, the author finds, with the non-regression clauses, the principle of “inderogabilità”, even if directed to select the applicable rule, of which shows the operating limits but also the potential use by the more recent case of Court of Justice.
In the second part of the work, the author then directs his attention to the European Court with regard to flexible working, observing how the circuit of the multilevel case law expresses a passage to a certain extent unavoidable by the "rules "to" techniques "in relation to the protection of rights.
The study focuses, in the last two chapters, on technical and interpretive models of the Court’s decisions. In the fourth chapter, the author's attention focuses on "creative decision", noting its persistence in the Italian labor law, which is developing and expanding through the extended use of the technique of interpretation in conformity or adaptation, prompted by the Superior Courts, on two levels, as a means of conformation to European Union law or as a vehicle of interpretation guided by the principles of the national Constitution. In this new context, the author analyzes the scope of the rule devoting specific attention to the subject matter of research, the influence of principles over-ordered and their direct application in prospect of protection.
In the last chapter the author highlights the problematic nature of this passage and critically examines the most recent decisions of the Court of Justice on the freedom of association and collective rights, in particular assessing the extent of the art of balancing and the use for this purpose, the principle of proportionality or reasonableness. The balance – of which is the basis of the equalitation principles - the author seems a model of large-scale application, handing the judge a discretionary power broadly speaking antithetic or otherwise differentiating with respect to the model of “inderogabilità”, in defense of principles which are hierarchically ordered and the court is called upon to make application of a rule al
Reiterating the validity and the essence of labor law as an "unequal" right, the author verifies how come out significant new methods of protection based no longer on the "norma inderogabile" but on the role played by the judge, although considering the difficulties of the increased influence of the jurisdiction in the recognition and protection of rights.
In the first part of the work, the author retraces the evolutionary parable of the legal discourse and the paradigm of “inderogabilità”, the instrument of choice to protect the weaker party, since it was established like an effect contained in the labour rules to its crisis. The flexibility is in this perspective, the priority area in which new technical standards and produces an irreparable rift in the discourse on the “inderogabilità”. But it is precisely from the realization of this rift that the author identifies, as early as the second chapter of the book, in case law a factor of resistance or at least a factor conditioning, giving rise to interpretations directed by the "restrictions’ system ".
In the development of the book, the author broadens its horizons to new models in prospect of flexibility’s containment, addressing in a critical way the development of the flexicurity’s project both in the context of legal discourse and of European Union policies. In the Community legal experience, the author finds, with the non-regression clauses, the principle of “inderogabilità”, even if directed to select the applicable rule, of which shows the operating limits but also the potential use by the more recent case of Court of Justice.
In the second part of the work, the author then directs his attention to the European Court with regard to flexible working, observing how the circuit of the multilevel case law expresses a passage to a certain extent unavoidable by the "rules "to" techniques "in relation to the protection of rights.
The study focuses, in the last two chapters, on technical and interpretive models of the Court’s decisions. In the fourth chapter, the author's attention focuses on "creative decision", noting its persistence in the Italian labor law, which is developing and expanding through the extended use of the technique of interpretation in conformity or adaptation, prompted by the Superior Courts, on two levels, as a means of conformation to European Union law or as a vehicle of interpretation guided by the principles of the national Constitution. In this new context, the author analyzes the scope of the rule devoting specific attention to the subject matter of research, the influence of principles over-ordered and their direct application in prospect of protection.
In the last chapter the author highlights the problematic nature of this passage and critically examines the most recent decisions of the Court of Justice on the freedom of association and collective rights, in particular assessing the extent of the art of balancing and the use for this purpose, the principle of proportionality or reasonableness. The balance – of which is the basis of the equalitation principles - the author seems a model of large-scale application, handing the judge a discretionary power broadly speaking antithetic or otherwise differentiating with respect to the model of “inderogabilità”, in defense of principles which are hierarchically ordered and the court is called upon to make application of a rule al
Iris type:
3.1 Monografia o trattato scientifico
List of contributors: