New chapters of the endless series «game of thrones among European judges»: temporary work, registration of the working day, data protection, partial work...

Abstract

Because of the principle of stronger linking of national judges to EU law and to the case law of the European Court of Justice, the production of Labor Law –and of Social Security Law– is increasingly due to a judicial creation process («judge-made-law»). This new model of diffuse control of the supralegal legitimacy of national norms has a positive effect: legal dynamism and innovation. However, at the same time, that plural model encourages a plus of unpredictability of the law applicable to cases. This appears in the eyes of the subjects of labor relations continually subject to review through the dialogue between the national community judges and the Court of Justice of the European Union. The result of this system of jurisdictional protection of the social rights of workers, multilevel and dialectic, made with plural voices, without a choral voice, is closer to the permanent conflict between the various levels than a fertile dialogue.

In recent times, very relevant issues of labor relations in Spain, such as control measures of temporary abuse, control of working time, data protection, dismissal for absenteeism, part-time work and other they have been intensely affected by this dialectical and unpredictable way of interpreting and recreating labor and social norms. This analysis of legal-social novelties proposes a complete exposition of the most relevant judicial cases (precedents) and a deep criticism of the cases that lack the necessary legal rigor, the only way to guarantee a prudent use of the prejudicial question as a new source of creation Labor Law based on the method of the Community precedent.