Executive administrators and senior managers: Rethinking the theory of the link?

Abstract

For many years, the theory of the link—also known as the organicist or monist theory—has been upheld by the labour courts, followed by the civil and administrative courts. Although it was initially designed to prevent an escape towards labour law, specifically towards the regulation of the employment relationship of senior management in various aspects concerning “executive directors,” it has been subject to criticism by legal scholars. Legislative changes in company law allowed this theory to be set aside, despite its continued application by judges and courts across different jurisdictions. One of the problems that most impacts the labour field, and therefore the intra-corporate legal relationship, concerns cases in which a special senior management employment relationship coexists with the position of director, despite the qualifications introduced by labour case law in certain instances. To continue with the projection of the CJEU’s case law in this area, whose reasoning is used by our national judges and courts, a negative conflict of jurisdiction between the labour and civil courts now arises, which must be resolved by the Conflicts Chamber of the Supreme Court.