CONTRACT LAW - 2020
Contents
CONTRACT LAW - 2020................................................................................................................................1
Lecture 1 – Classification and Contracts of Work....................................................................................2
Waas – The legal definition of the employment relationship..............................................................2
Article: the Dynamex Decision: The California Supreme Court Restricts Use of Independent
Contractors https://www.laboremploymentlawblog.com/2018/05/articles/class-actions/dynamex-
decision-independent-contractors/.....................................................................................................4
Lecture 2 – The Evolution of the Role and Scope of Labour Law.............................................................7
Guy Davidov – Nonwaivability in Labour Law......................................................................................7
Manfred Weiss – Re-inventing Labour Law........................................................................................10
Lecture 3 – Limitations to the Freedom of Contract in Labour Law by Collective Bargaining Rights.....11
Guy Davidov – Collective Bargaining Laws: Purpose and Scope.........................................................11
R. Fahlbeck= – Collective agreements: a crossroad between public and private law........................15
Lecture 4 & 5 (merged) – Mobility of Workers across the EU................................................................20
Even, Houweling, Zwanenburg & Houwerzijl – The Analysis of Private International Law in the EU
with Regard to EU Cross-Border Road Transport: Competency and Applicable Law.........................20
Houwerzijl – The Analysis of Posting Workers Directive(s) with a specific focus on EU Cross-Border
Road Transport (not in depth…).........................................................................................................22
Lecture 6&7 (merged) – Introduction to Contract Law and Regulation and Rationales for Consumer
Law and Policy.......................................................................................................................................26
V. Mak – The character of European Private Law (fast, important??)...............................................26
P. Hacker – The behavioral Divide.....................................................................................................27
H. Schebsta and K. Purnhagen – The behaviour of the average consumer: A Little Less normativity
and a Little more reality in CJEU’s case law? Reflections on Teekannee............................................27
CR Sunstein and RH Thaler – Libertarian Paternalism is not an oxymoron........................................29
Lecture 8 – Consumer Sales Law............................................................................................................30
A Johnston and U Uberath – case note on Weber and Putz..............................................................30
E Tarryn – A right to Repair? Towards Sustainable Remedies in Consumer Law...............................33
Lecture 9 – Unfair Commercial Practices...............................................................................................37
Durovic – The Subtle Europeanization of Contract Law: The case of the Directive 2005/29/EC on
Unfair Commercial Practices..............................................................................................................37
Twigg-Flessner – Bad Hand? The New Deal for EU Consumers..........................................................43
Page 1 of 52
, Lecture 10 – Consumer Financial Services Law in Europe: Credit..........................................................46
V Mak – What is Responsible Lending? The EU Consumer Mortgage Credit Directive in the UK and
the NL................................................................................................................................................46
J. Luzak and M. Junuzovic – Blurred Lines: Between Formal and Substantive Transparency in
Consumer Credit Contracts................................................................................................................49
C Garcia and W. Van den Boom – Information Disclosure in the EU Consumer Credit Directive:
Opportunities and limitations............................................................................................................51
Lecture 1 – Classification and Contracts of Work
Waas – The legal definition of the employment relationship
Introduction
- Application of LL (labour law) places the other party to the contract under a severe burden both
from a financial and an administrative perspective (health protection, right to time off, sickness
regulations)
- Transaction costs of LL are heavy (transfer of an undertaking)
- Restrictions to entrepreneurial freedom
- Legal definition of employee relationship is thus a highly sensitive issue
Current state of affairs
National laws
- Huge differences exist in defining an ‘’employment relationship’’
Germany: ‘’Employee’’ term that does not say much in German law and does not have to meet
certain employment relationship requirements. No specific characteristics, but rather a relationship
which can be likened to ‘’family resemblance’’. This is the typological method: German court
determining whether an employment relationship exists is not dependent on any criteria. Rather set of
criteria which are used as indicators to the existence of an employment relationship (also for other E
countries):
Whether work is performed solely or mainly for the benefit of another
Whether the work is carried out or has to be carried out personally
Whether the work is carried out within specific hours or at an agreed place
Whether the work has a particular duration and continuity
Whether the work requires the availability of a person
Whether the work involves an obligation of the partner to provide work
Whether the work involves the provision of tools/materials by the person requesting the work
(mutuality)
Whether the work is accompanied by periodic payments to the working person
Etc.
Economic focus on the employment relationship in these criteria.
Other means to explore whether an employment relationship exists:
- Employed or self-employed
- Certain requirements
Vast majority of countries:
Page 2 of 52
,Principle of ‘’primacy of facts’’ = the substance of the relationship trumps the form of a contract or, in
any event, the practical handling of the contract by the parties and not the language which is employed
by them is of key relevance to this respect.
EU law
Worker = a person who, for a certain period of time performs services for and under the direction of
another person in return for which he receives remuneration (Lawrie Blum, RaccaNelli, art 39)
No general notion of ‘’employment relationship’’ within EU.
Mikkelsen case: Term should be defined by MS themselves on the ground that Acquired Rights directive
was not intended to provide uniform protection throughout the community.
Thus, MSs are allowed to define the term employee and employment relationship at will.
Certain limitations:
- Respect Human Rights + fundamental rights
- General principle of equality and nondiscrimination: also, indirect discrimination
The task ahead
Challenges
Why do challenges exist?
- Boundaries of business units have become blurred; difficult to decide whether a person forms
part of a given entity or not the consequence being that the integration test which has been
described above fails
- Technological changes; offering new channels for employers to make use of their power to
direct
- Independent contractors; people filling in shelves, sales promoters and drivers; one-man-
companies, impossible to decide whether someone is an employee or an independent
contractor
Problem areas and possible answers
Deliberate fragmentation: fragmentation of labour law; national legislators may consider specific rules
of labour law applicable to specific workers only instead of what would be called a make-or-break
approach in applying LL. Definitions of employee and independent contractor are key in the application
of LL, but paradigm is very limited when one has to differ between employee and contractor in an
individual case.
Would become easier if it was not at stake whether LL applies, but whether specific rules of LL apply
only. Is it reasonable, in the light of the legal purpose of a specific rule, to hold that one person is inside
its scope of application and another is outside?
Also, regarding EU LL and the differences between MS.
Another issue would be to consider specific legal sub regimes for different categories of employees
affording to them different rights and entitlements.
Let the parties decide for themselves: but which room should be allowed for contractually disposing of
the protection offered by LL? But, in most cases, employer has much more power in determining the
clauses of the contract. Extension of the freedom of contract can hardly be an option with regard to
determining the personal boundaries of an employment relationship. If one party enjoys such a
Page 3 of 52
, predominance, near balance of power is lacking and cannot be guaranteed by the sole basis and
instruments of contract law alone.
Which room for protecting economically-dependent persons? whether and to which extent persons
should be protected by LL who are not personally dependent but economically dependent only grey
area of LL and commercial law. Raises doubts about whether the employment relationship should be the
sole ‘’vehicle for the delivery of rights and entitlements’’. Germany; quasi-salaried workers, more rights
than self-employed workers. Also, in Italy this category of workers exists.
But is this justified? Need to address the problem whether it is justifiable to hold that the other
party to the contract is bound to LL rules. A person needs social protection not less than an
employee and quite another whether it is legitimate to make the opposite party bearing the
various burdens that come with the application of LL. Additionally, may be difficult to establish
such a link between a quasi-worker and a worker.
Which room for social dialogue: ILO recommendation 198 of 2006 on employment relationship stresses
that social dialogue may offer ideal means to achieve consensus on finding solutions to questions
related to the questions related to the scope of the employment relationship at the national level.
Would also be problematic to hold that collective agreements can be concluded Ans possibly be brought
forward by means of collective action too – for persons who are on the basis of an objective assessment
not employees.
Article: classifying gig workers htt ps://hbr.org/2019/07/the-debate-over-
how-to-classify-gig-workers-is-missing-the-bigger-picture
2018: California Supreme court adopted a test for how to classify gig workers.
Dynamex decision: workers are presumed to be employees unless the employer can prove that
the worker is free from its control and direction, the work is outside company’s usual business
and worker often works as freelances.
Argued that classifying workers as either employees or freelancers is a red herring. Larger issue: how to
modernize employment and labor protections to fit in with realities of work today.
- Expand rights to all workers providing services in market, regardless of classification
- Creation of rules that are specific to platform gig workers
- Provide access to welfare rights such as health care, unemployment insurance and retirement
funds for gig workers who are not linked to a single platform
- Consider the different motivations of why people gig
Article: the Dynamex Decision: The California Supreme Court
Restricts Use of Independent Contractors
https://www.laboremploymentlawblog.com/2018/05/articles/class-actions/
dynamex-decision-independent-contractors/
In this case = Court embraced a standard presuming that all workers are employees instead of
contractors, and placed the burden on any entity classifying an individual as an independent contractor
of establishing that such classification is proper under the newly adopted ABC test.
Facts: Dynamix is a nationwide same-day courier and delivery service that offers-on-demand, same-day-
pickup and delivery services to business and public. Prior to 2004, workers were classified as employees,
after that converted all its drivers into independent contractors as a cost saving measure.
Page 4 of 52
Contents
CONTRACT LAW - 2020................................................................................................................................1
Lecture 1 – Classification and Contracts of Work....................................................................................2
Waas – The legal definition of the employment relationship..............................................................2
Article: the Dynamex Decision: The California Supreme Court Restricts Use of Independent
Contractors https://www.laboremploymentlawblog.com/2018/05/articles/class-actions/dynamex-
decision-independent-contractors/.....................................................................................................4
Lecture 2 – The Evolution of the Role and Scope of Labour Law.............................................................7
Guy Davidov – Nonwaivability in Labour Law......................................................................................7
Manfred Weiss – Re-inventing Labour Law........................................................................................10
Lecture 3 – Limitations to the Freedom of Contract in Labour Law by Collective Bargaining Rights.....11
Guy Davidov – Collective Bargaining Laws: Purpose and Scope.........................................................11
R. Fahlbeck= – Collective agreements: a crossroad between public and private law........................15
Lecture 4 & 5 (merged) – Mobility of Workers across the EU................................................................20
Even, Houweling, Zwanenburg & Houwerzijl – The Analysis of Private International Law in the EU
with Regard to EU Cross-Border Road Transport: Competency and Applicable Law.........................20
Houwerzijl – The Analysis of Posting Workers Directive(s) with a specific focus on EU Cross-Border
Road Transport (not in depth…).........................................................................................................22
Lecture 6&7 (merged) – Introduction to Contract Law and Regulation and Rationales for Consumer
Law and Policy.......................................................................................................................................26
V. Mak – The character of European Private Law (fast, important??)...............................................26
P. Hacker – The behavioral Divide.....................................................................................................27
H. Schebsta and K. Purnhagen – The behaviour of the average consumer: A Little Less normativity
and a Little more reality in CJEU’s case law? Reflections on Teekannee............................................27
CR Sunstein and RH Thaler – Libertarian Paternalism is not an oxymoron........................................29
Lecture 8 – Consumer Sales Law............................................................................................................30
A Johnston and U Uberath – case note on Weber and Putz..............................................................30
E Tarryn – A right to Repair? Towards Sustainable Remedies in Consumer Law...............................33
Lecture 9 – Unfair Commercial Practices...............................................................................................37
Durovic – The Subtle Europeanization of Contract Law: The case of the Directive 2005/29/EC on
Unfair Commercial Practices..............................................................................................................37
Twigg-Flessner – Bad Hand? The New Deal for EU Consumers..........................................................43
Page 1 of 52
, Lecture 10 – Consumer Financial Services Law in Europe: Credit..........................................................46
V Mak – What is Responsible Lending? The EU Consumer Mortgage Credit Directive in the UK and
the NL................................................................................................................................................46
J. Luzak and M. Junuzovic – Blurred Lines: Between Formal and Substantive Transparency in
Consumer Credit Contracts................................................................................................................49
C Garcia and W. Van den Boom – Information Disclosure in the EU Consumer Credit Directive:
Opportunities and limitations............................................................................................................51
Lecture 1 – Classification and Contracts of Work
Waas – The legal definition of the employment relationship
Introduction
- Application of LL (labour law) places the other party to the contract under a severe burden both
from a financial and an administrative perspective (health protection, right to time off, sickness
regulations)
- Transaction costs of LL are heavy (transfer of an undertaking)
- Restrictions to entrepreneurial freedom
- Legal definition of employee relationship is thus a highly sensitive issue
Current state of affairs
National laws
- Huge differences exist in defining an ‘’employment relationship’’
Germany: ‘’Employee’’ term that does not say much in German law and does not have to meet
certain employment relationship requirements. No specific characteristics, but rather a relationship
which can be likened to ‘’family resemblance’’. This is the typological method: German court
determining whether an employment relationship exists is not dependent on any criteria. Rather set of
criteria which are used as indicators to the existence of an employment relationship (also for other E
countries):
Whether work is performed solely or mainly for the benefit of another
Whether the work is carried out or has to be carried out personally
Whether the work is carried out within specific hours or at an agreed place
Whether the work has a particular duration and continuity
Whether the work requires the availability of a person
Whether the work involves an obligation of the partner to provide work
Whether the work involves the provision of tools/materials by the person requesting the work
(mutuality)
Whether the work is accompanied by periodic payments to the working person
Etc.
Economic focus on the employment relationship in these criteria.
Other means to explore whether an employment relationship exists:
- Employed or self-employed
- Certain requirements
Vast majority of countries:
Page 2 of 52
,Principle of ‘’primacy of facts’’ = the substance of the relationship trumps the form of a contract or, in
any event, the practical handling of the contract by the parties and not the language which is employed
by them is of key relevance to this respect.
EU law
Worker = a person who, for a certain period of time performs services for and under the direction of
another person in return for which he receives remuneration (Lawrie Blum, RaccaNelli, art 39)
No general notion of ‘’employment relationship’’ within EU.
Mikkelsen case: Term should be defined by MS themselves on the ground that Acquired Rights directive
was not intended to provide uniform protection throughout the community.
Thus, MSs are allowed to define the term employee and employment relationship at will.
Certain limitations:
- Respect Human Rights + fundamental rights
- General principle of equality and nondiscrimination: also, indirect discrimination
The task ahead
Challenges
Why do challenges exist?
- Boundaries of business units have become blurred; difficult to decide whether a person forms
part of a given entity or not the consequence being that the integration test which has been
described above fails
- Technological changes; offering new channels for employers to make use of their power to
direct
- Independent contractors; people filling in shelves, sales promoters and drivers; one-man-
companies, impossible to decide whether someone is an employee or an independent
contractor
Problem areas and possible answers
Deliberate fragmentation: fragmentation of labour law; national legislators may consider specific rules
of labour law applicable to specific workers only instead of what would be called a make-or-break
approach in applying LL. Definitions of employee and independent contractor are key in the application
of LL, but paradigm is very limited when one has to differ between employee and contractor in an
individual case.
Would become easier if it was not at stake whether LL applies, but whether specific rules of LL apply
only. Is it reasonable, in the light of the legal purpose of a specific rule, to hold that one person is inside
its scope of application and another is outside?
Also, regarding EU LL and the differences between MS.
Another issue would be to consider specific legal sub regimes for different categories of employees
affording to them different rights and entitlements.
Let the parties decide for themselves: but which room should be allowed for contractually disposing of
the protection offered by LL? But, in most cases, employer has much more power in determining the
clauses of the contract. Extension of the freedom of contract can hardly be an option with regard to
determining the personal boundaries of an employment relationship. If one party enjoys such a
Page 3 of 52
, predominance, near balance of power is lacking and cannot be guaranteed by the sole basis and
instruments of contract law alone.
Which room for protecting economically-dependent persons? whether and to which extent persons
should be protected by LL who are not personally dependent but economically dependent only grey
area of LL and commercial law. Raises doubts about whether the employment relationship should be the
sole ‘’vehicle for the delivery of rights and entitlements’’. Germany; quasi-salaried workers, more rights
than self-employed workers. Also, in Italy this category of workers exists.
But is this justified? Need to address the problem whether it is justifiable to hold that the other
party to the contract is bound to LL rules. A person needs social protection not less than an
employee and quite another whether it is legitimate to make the opposite party bearing the
various burdens that come with the application of LL. Additionally, may be difficult to establish
such a link between a quasi-worker and a worker.
Which room for social dialogue: ILO recommendation 198 of 2006 on employment relationship stresses
that social dialogue may offer ideal means to achieve consensus on finding solutions to questions
related to the questions related to the scope of the employment relationship at the national level.
Would also be problematic to hold that collective agreements can be concluded Ans possibly be brought
forward by means of collective action too – for persons who are on the basis of an objective assessment
not employees.
Article: classifying gig workers htt ps://hbr.org/2019/07/the-debate-over-
how-to-classify-gig-workers-is-missing-the-bigger-picture
2018: California Supreme court adopted a test for how to classify gig workers.
Dynamex decision: workers are presumed to be employees unless the employer can prove that
the worker is free from its control and direction, the work is outside company’s usual business
and worker often works as freelances.
Argued that classifying workers as either employees or freelancers is a red herring. Larger issue: how to
modernize employment and labor protections to fit in with realities of work today.
- Expand rights to all workers providing services in market, regardless of classification
- Creation of rules that are specific to platform gig workers
- Provide access to welfare rights such as health care, unemployment insurance and retirement
funds for gig workers who are not linked to a single platform
- Consider the different motivations of why people gig
Article: the Dynamex Decision: The California Supreme Court
Restricts Use of Independent Contractors
https://www.laboremploymentlawblog.com/2018/05/articles/class-actions/
dynamex-decision-independent-contractors/
In this case = Court embraced a standard presuming that all workers are employees instead of
contractors, and placed the burden on any entity classifying an individual as an independent contractor
of establishing that such classification is proper under the newly adopted ABC test.
Facts: Dynamix is a nationwide same-day courier and delivery service that offers-on-demand, same-day-
pickup and delivery services to business and public. Prior to 2004, workers were classified as employees,
after that converted all its drivers into independent contractors as a cost saving measure.
Page 4 of 52
