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Friday, 22 August 2014

Catherine Barnard Research Leave: Spanish AdventuresResearch leave is one of the great privileges of an academic job, and a great opportunity to explore issues that you would like to know more about but simply did not have the time during the usual teaching year.

For me the privilege was even greater because I spent my time as Catedra de Excelencia University of Carlos III, Madrid (September 2013-February 2014). I learned Spanish – at least enough to be able to access Spanish legal texts and to interview lawyers and officials in Spanish, as well as to manage day-to-day living. This opened the door on a fascinating legal system in a time of economic crisis. My main project was to look at the effect of the EU's European semester programme (its annual process of reviewing states' economic and employment policies) on national systems, particularly on their employment law. This required trawling through mountains of Commission documents as well as trying to piece together the story of the impact of the Commission recommendations on the Spanish and British systems of labour law. This will result in a publication entitled 'A European nudge and a domestic think: getting states to reform their labour law'1.

I also used my leave to complete various other projects. The first related to the ongoing saga of the consequences of the Court's decisions in Viking and Laval. I considered the failure of the Monti II proposal, which was intended to address some of the shortcomings of the Viking decision, and what might have been, in 'Free movement and Labour Rights: Squaring the Circle' in S. Evju (ed) Regulating Transnational Labour in Europe: The quandaries of multilevel governance2.

The EFTA Court's decision in Case E-2/11 STX Norway and Others faithfully followed the Court of Justice's decision in Laval. The Norwegian court making the reference then controversially refused to follow parts of the EFTA Court decision. I examined the technicalities of these cases and their constitutional implications in work that was first presented to Norwegian Labour lawyers in the Lofoten Islands and then published in the main Norwegian labour law journal ('Posting Matters'3). A shorter version was subsequently published in the UK entitled 'More Posting'4). I considered the relationship more generally between the EFTA Court and the national courts in 'Reciprocity, homogeneity, and loyal cooperation: dealing with recalcitrant national courts?' in Baudenbacher (ed) Twenty Years of the EFTA Court (forthcoming).

Second, I finalised a book chapter examining the extent to which migrants use the courts to enforce their employment rights. There is a remarkable absence of data on this topic. This chapter focused on how many appeals to the Employment Appeal Tribunal (EAT) have been made by EU-8 migrants as a proxy for exploring how many cases were taken by EU-8 migrants to the Employment Tribunals (ETs) ('Enforcement of employment rights by migrant workers in the UK: the case of EU-8 nationals', in C. Costello and M. Freedland (eds), Migrants at Work5. This formed the basis of a successful application for funding from the Cambridge Humanities Research Grant Scheme to do a follow up empirical project with Amy Ludlow on the use of ETs by EU-8 migrants on which we are currently working.  

European Union LawThird, Steve Peers and I edited an innovative book on EU law (C. Barnard and S. Peers (eds), EU Law6. Aimed as a text for undergraduates, different experts (ourselves included) wrote chapters covering the whole of the undergraduate syllabus. This book was launched in Cambridge in July 2014.

Fourth, I worked on a large paper looking at the present position of EU employment law and the European Social Model (ESM). While many, including Mario Draghi, the President of the European Central Bank, have predicted the demise of the ESM, I am more upbeat. The paper 'EU Employment Law and the European Social Model: The Past, the Present and the Future'7 was presented in Granada and London. The proposals going forward are to be presented in Leuven in September at a conference on the European Social Union, organised by Frank Vandenbroucke and chaired by Herman Van Rompuy.

Fifth, I continued developing my interest in human rights. This led to a paper delivered in Oxford and Istanbul on 'The Silence of the Charter'. This will be published next year in S. de Vries, U. Bernitz and S. Weatherill, The Charter: Five Years on8. I also presented a paper, written with Simon Deakin, in Lund on age discrimination and labour law in the UK and, in particular, the practical experience of implementing an Employer Justified Retirement Age (EJRA). This is to appear in a book edited by A. Numhauser-Hennig and M. Ronnmar, Age Discrimination and Labour Law (forthcoming).

Finally, I continued to be involved in the UK government's balance of competence review. I wrote a report on the free movement of Services which was published in July. The government's report drew on my work, while my own research was published separately.  I also wrote on cohesion policy, and my report formed the basis of chapters 1 and 2 of the government's report published on 22 July 2014.

My leave was productive, refreshing and invigorating. I have returned with ideas and enthusiasm. Apart from the migrant workers project, I am also doing some work on the social dimension of the new public procurement regime, on equality and self-employment, on public interest justifications, especially the worker justification, and the principle of mutual recognition.


1 'A European nudge and a domestic think: getting states to reform their labour law' Maastricht Journal of European and Comparative Law, forthcoming
2 S. Evju (ed) Regulating Transnational Labour in Europe: The quandaries of multilevel governance (Oslo, Department of Private Law Publications, 2014), pp325-351
3 'Posting Matters' (2014) 11 Arbeidsrett 1-28
4 'More Posting' (2014) 43 Industrial Law Journal 194-211
5 C. Costello and M. Freedland (eds), Migrants at Work (Oxford: OUP, 2014 forthcoming)
6 C. Barnard and S. Peers (eds), EU Law (Oxford, OUP, 2014), 978-0-19-968611-7, pp814)
7 EU Employment Law and the European Social Model: The Past, the Present and the Future' (2014) CLP 1-39
8 S. de Vries, U. Bernitz and S. Weatherill, The Charter: Five Years on (Oxford, Hart Publishing)