'Good Faith and Fair Dealing in Personal Work Contracts in European Law - a comparative methodology’ University of Cambridge – 13 February 2009 Mark Freedland Nicola Kountouris

'Good Faith and Fair Dealing in Personal Work Contracts in European Law - a comparative methodology’ Structure 1. MRF – Introduction - general introduction about the project and the specific theme 2. MRF – The comparative methodology - general discussion about the comparative methodology 3. NK - Considerations about the comparative method and implied terms 4. NK - Quick presentation of the main implied principles we are focussing on 5. MRF – Discussion in respect of English law 6. NK - Discussion in respect on Eurociv systems 7. MRF - Conclusions

'Good Faith and Fair Dealing in Personal Work Contracts in European Law - a comparative methodology’ 1. MRF - Introduction - general introduction about the project and the specific theme The project as a whole The importance of a comparative method Where does this theme fit in the overall project? Why do we focus on implied terms in this part of the project?

'Good Faith and Fair Dealing in Personal Work Contracts in European Law - a comparative methodology’ 2. MRF – The comparative methodology - general discussion about the comparative methodology General pitfalls associated to the comparative analysis of personal work relations Our approach to comparing these systems  The ‘institutions’ hypothesis - institutional unity and normative diversity of the CoE emancipation of CoE from contract law – residual role of contract capacity or propensity of each legal system to integrate social legislation and/or the normative outcomes of collective bargaining into the fabric and structure of contracts of employment Jus cogens v jus dispositivum  The methodology hypothesis – two different mindsets Engcom v EuroCiv

'Good Faith and Fair Dealing in Personal Work Contracts in European Law - a comparative methodology’ 3. NK - considerations about the comparative method and implied terms Particular complexities of a general and specific nature Generally:  would continental lawyers use the expression ‘implied terms’? Italian lawyers speak of ‘general clauses’, ‘general obligations’. One of the legacies of voluntarism?  Are these terms mandatory or are they displaceable by express contractual provision? Continental hierarchy on norms/sources provides a rigid fwk  Are these guiding principles specific to PWC or are they mostly a contract law construction?  Are they mainly worker or employer protective? Specifically:  Comparing what? Nomen juris v functional equivalence. E.g. Continental BF with EngCom ‘GF’ or ‘mutual trust and confidence’?

'Good Faith and Fair Dealing in Personal Work Contracts in European Law - a comparative methodology’ 4. NK - quick presentation on the main implied principles we are focussing on i. Fidelity and Obedience (the protection of the interests of the empl. Entity) ii. Care and the protection of the welfare of workers iii. Mutual trust, good faith and fair dealing

'Good Faith and Fair Dealing in Personal Work Contracts in European Law - a comparative methodology’ 5. MRF – discussion in respect of English law i. Fidelity and Obedience The core or defining set of implied terms ii. Care and the protection of the welfare of workers A secondary and somewhat limited development iii. Mutual trust, good faith and fair dealing A tertiary and still rather uncertain development

'Good Faith and Fair Dealing in Personal Work Contracts in European Law - a comparative methodology’ 6. NK - discussion in respect on Eurociv systems i. Fidelity and Obedience (the protection of the interests of the empl. Entity) Early element of the modern CoE (Lotmar v Barassi) Codified in Italy: 2104 cc obedience – 2105 fidelity Recent codification in France of obligation de loyaute’ (L al), but traditionally derived from GF in A 1134 al 3 of CC Unification and re-stratification of CoE – Managers v dirigeants ii. Care and the protection of the welfare of workers ‘protection of physical integrity and moral personality’ A 2087 CC Italy, building on 19 th c. GF and social legislation. A 32 and 41(2) of It Const, Statuto dei Lavoratori, implementation of EC law on HS France ‘obligation de securite’’ integrated in the legal fabric C-127/05 Commission v UK

'Good Faith and Fair Dealing in Personal Work Contracts in European Law - a comparative methodology’ 6. NK - discussion in respect on Eurociv systems i. Mutual trust, good faith and fair dealing Continental GF – mostly a socially regressive concept?  i. Contract law phase (19 th c): Gap filling device and cultural (ideological) support to a power relationship  ii. Accessory obligations and disenchantment of labour lawyers (GF and proportionality in industrial action?)  iii. Post WW2. Statutory and constitutional protections make GF less relevant  iv. 1980s-90s on. Rediscovery. French Labour Code L. Article L ‘Le contrat de travail est exécuté de bonne foi’ Moral-psychiatric harm, harassment and ‘mobbing’

'Good Faith and Fair Dealing in Personal Work Contracts in European Law - a comparative methodology’ 7. MRF – Conclusions This comparative exercise suggests widely diverging national paradigms for PWCs in general and CoE in particular These divergences result in significantly different national starting points for discussions about the development of EU employment and equality law… … and also different starting points for a potentially very important discussion of the role of PWCs in the development of European private law, as for instance in the context of the Draft Common Frame of Reference for European Contract Law Some reflections of path dependency.