Abstract
The question of which labour law is applicable to a cross-border situation constitutes a complicated tangle involving a set of conflict rules with a graduated connecting factor, whereby different legislations may apply in a cross-border context. All kinds of employee protection mechanisms were linked to the free choice, so that the determination of the applicable law(s) becomes a very complicated task for the legal practitioner and the courts. Not only can several legislations be applicable, but this issue is also regulated by a complex interplay between the Rome I Regulation and Posting of Workers Directive 96/71. Moreover, the latter directive has undergone quite an evolution. More and more questions arise as to whether these regulations are actually still adequate to regulate the broad variety of employment forms present in the labour market. Just think of virtual work. At the same time, questions arise as to whether the application of e.g. the Posting of Workers Directive is still proportionate—and whether there is no minimum threshold before this directive is applicable—or about its difficult application to employment in several Member States (as in the case of transport).
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Notes
- 1.
See Riesenhuber (2012), p. 214.
- 2.
Convention on the law applicable to contractual obligations opened for signature in Rome on 19 June 1980 (1980) OJ L 266. This Regulation, which has replaced Regulation 44/2001, is strongly inspired by the Brussels I Regulation of 1968, also known as the EEX Convention, completed by the Lugano Convention for the EEA. It was only in this last convention that a separate arrangement for labour disputes was included, strongly inspired by the convention on the law applicable to contractual obligations (1980 Rome Convention). This arrangement did not exist in the EEX Convention because at that time, there were plans to issue a regulation on labour law which would also contain rules on jurisdiction. Nevertheless, this regulation never saw the light of day (see Proposal for a Regulation (EEC) of the Council on the provisions on conflict of laws on employment relationships within the Community OJ C-49, 26.).
- 3.
Art. 1(2)(c) of Regulation (EU) 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (2012) OJ L351.
- 4.
See the conclusion of Advocate General Jacobs in CJEU 27 February 2002, Herbert Weber v Universal ogden Services Ltd., C-37/00, ECLI:EU:C:2002:12.
- 5.
See also Recital 6 of the Rome I Regulation: “The proper functioning of the internal market creates a need, in order to improve the predictability of the outcome of litigation, certainty as to the law applicable and the free movement of judgments, for the conflict-of-law rules in the Member States to designate the same national law irrespective of the country of the court in which an action is brought”.
- 6.
The concept of ‘domicile’ is not a treaty-autonomous concept and in order to determine whether someone is domiciled on the territory of a Member State, the court must apply national law (Art. 62). Legal persons and companies, on the other hand, shall be domiciled at the place where they have their registered office or central administration or their principal place of business (Art. 63(1).
- 7.
If one is not domiciled in a Member State of the Regulation, jurisdiction is in principle only possible on the basis of the national law of the Member State concerned (Art. 6).
- 8.
Art. 63 of Regulation 1215/2012.
- 9.
See e.g. further under, this chapter, Sect. 3.2.2.2.4.1. Not least because of the possible cost and the question to what extent such an employee has the support of e.g. trade unions in this (see also Carinci and Henke (2021), p. 142.).
- 10.
For instance, an employee being posted from Member State A to an undertaking from Member State B can sue the latter if he has a contractual relationship with the undertaking concerned.
For non-employment contracts, the rule applies that one can be sued in the Member State of domicile (Art. 4) or in matters relating to a contract, in the courts for the place of performance of the obligation in question (Art. 7(1).).
- 11.
By ‘disputes arising out of operations’, we mean, among other things, actions relating to rights and contractual or non-contractual obligations concerning the management properly so-called of the agency, branch, or other establishment itself such as the rent of the building in which the branch offices are established or the local engagement of staff to work there (CJEU 22 November 1978, Somafer SA v Saar-Ferngas AG, C-33/78, ECLI:EU:C:1978:205.). In that sense, posted personnel that is, for instance, sent from the mother company to a subsidiary does not fall under this provision. See also in that sense De Ceuster (1987), p. 421 and Massant and Tilleman (1990), p. 22.
- 12.
Art. 20(2) of Regulation 1215/2012. The concept of branch, agency, or other establishment implies a place of business which has the appearance of permanency, such as the extension of a parent body, has a management, and is materially equipped to negotiate business with third parties so that the latter, although knowing that there will if necessary be a legal link with the parent body, the head office of which is abroad, do not have to deal directly with such parent body but may transact business at the place of business constituting the extension. (CJEU 22 November 1978, Somafer SA v Saar-Ferngas AG, C-33/78, ECLI:EU:C:1978:205.).
- 13.
And therefore does not concern a branch, agency, or other establishment, in which case Article 20(2) of Regulation 1215/2012 would apply.
- 14.
Art. 21 of Regulation 1215/2012. Art. 8(1) of Regulation 1215/2012 establishes that a person domiciled in the territory of a Member State can also be summoned: where there is more than one defendant, in the courts for the place where any one of them is domiciled, provided the claims are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from separate proceedings.
This provision now also applies to labour disputes. There was a longstanding lack of clarity about this. This possibility was also provided for in Art. 6 of Regulation 44/2001, but not in the separate regulation on employment contracts. According to the Court of Justice, this implied that the arrangement could not be applicable. See CJEU 22 May 2008, Glaxosmithkline and Laboratoires Glaxosmithkline, C-462/06, ECLI:EU:C:2009:610. This case was brought before the court by an employee against two companies established in different Member States that he considered to be his former joint employers, as the special rules of jurisdiction for disputes with regard to employment contracts are exhaustive and thus exclude the application of Art. 6.
Regulation 2012/215 now rectifies this. If this is not the case, every relationship has to be judged separately.
Krebber (2020b), p. 643. However, it only concerns a situation with different defendants. The reverse situation, where there are several claimants and a single defendant, is not anticipated, which is why this regulation does not include any rules allowing for collective redress actions such as class actions. (See on this Nuyts (2014), pp. 69 et seq.). The latter could, for instance, be interesting in case of big groups of platform workers (Carinci and Henke (2021), pp. 150–154.).
- 15.
E.g. when the conflict arises after termination of the employment contract.
- 16.
To this end, it is not the legal person with whom the employment contract was concluded that should be taken into account, but the local unit where the person came to work.
- 17.
Considering the broad interpretation that the Court gave to the first paragraph (see below under Sect. 3.2.2.2.), the place of establishment will very rarely be used, even if legal doctrine (e.g. Krebber (2020b), p. 647.) points out that there does exist a risk if, for instance, an employee would file a lawsuit for the State of establishment and the latter would not have jurisdiction, as a result of which the complaint is inadmissible. In fact, that risk is non-existent when seeking the applicable labour law under the Rome I Regulation. However, it is true that an employee is not obliged to bring the case before this court.
- 18.
Art. 20(1) of Regulation 1215/2012 in conjunction with Art. 7(5) of Regulation 1215/2012.
- 19.
Art. 22(1) of Regulation 1215/2012.
- 20.
See for instance the conclusion of Advocate General Tesauro in CJEU 9 January 1997, Petrus Wilhelmus Rutten v Cross Medical Ltd., C-32/88, ECLI:EU:C:1997:7.
- 21.
So of one’s own free will, thus being very conscious of the possible consequences of this decision.
- 22.
Art. 23 of Regulation 1215/2012.
- 23.
Art. 67 of Regulation 1215/2012.
- 24.
After all, the rule of Article 21 does not entail the application of this possibility: the country of habitual employment shall not be the host State and when the employee does not habitually work or has not habitually worked in the same country, it is required that the establishment has hired the employee, which is not the case for a posted worker. The consequences may be that the court having jurisdiction in the home country must apply the labour law of the country of temporary employment, but the potential disadvantage that an employee may suffer as a result may be offset by the possibility that he has to sue the employer in the courts of the legal system with which he is most familiar. Davies (1997), p. 578.
- 25.
Art. 6 of Directive 96/71. In order to encourage posted workers to also bring an action before this court—in a country where they may have only been working for a very short time—Enforcement Directive 2014/67 provides for the possibility of an effective right of action to be granted to representative labour unions and other organisations to bring an action on behalf of the persons concerned and with their consent (Article 11(3)).
- 26.
See e.g. Van Hoek and Houwerzijl (2011), pp. 141–142 and Pataut (2018), p. 664. In the Wolf and Müller case the person concerned and in the Sähköalojen case the trade union brought proceedings in the host country on behalf of the employees. (CJEU 12 October 2004, Wolff & Müller, C-60/03, ECLI:EU:C:2004:610 and CJEU 12 February 2015, Sähköalojen ammattiliitto, C-396/13, ECLI:EU:C:2015:86 in light of the right to an effective remedy and fair trial as enshrined in Article 47 of the EU Charter of fundamental rights.).
- 27.
See e.g. conclusion of Advocate General in CJEU 7 February 2002, Commission v Italy, C-279/00, ECLI:EU:C:2002:89, para 34. Since in the case of unpaid wages and salaries it is—as the Italian Government rightly points out—generally not a question of very large sums of money, there is a particular risk that the cost of bringing a legal action will be disproportionately high.
- 28.
Third sentence of Art. 5 of Directive (EU) 2018/957 of the European Parliament and of the Council of 28 June 2018 amending Directive 96/71/EC concerning the posting of workers in the framework of the provision of services (2018) OJ L173.
- 29.
Pataut (2018), p. 664.
- 30.
See Art. 11 of Directive 2014/67: Member States shall ensure that the employer of the posted worker is liable for any due entitlements resulting from the contractual relationship between the employer and that posted worker. Member States shall in particular ensure that the necessary mechanisms are in place to ensure that the posted workers are able to receive: (a) any outstanding net remuneration which, under the applicable terms and conditions of employment covered by Article 3 of Directive 96/71/EC, would have been due; (…)
This paragraph shall also apply in cases where the posted workers have returned from the Member State to which the posting took place.
See also Art. 5(1) of Directive 2018/957: The Member State to whose territory the worker is posted and the Member State from which the worker is posted shall be responsible for the monitoring, control and enforcement of the obligations laid down in this Directive and in Directive 2014/67/EU and shall take appropriate measures in the event of failure to comply with this Directive.
- 31.
This was less clear under Directive 96/71. In any case, no provision seemed to oblige the court of the country of origin to apply the law of the host country as well. This essentially depends on the PIL of the home country. (For an example see: Evju (2010), p. 89.) The case concerned a Polish employer who had sent employees to Denmark. The employer had paid a fine for non-compliance with minimum wages as part of a settlement. Back in Poland, the employer started legal proceedings against some employees to recover this amount.) In such a case, the court will determine the applicable labour law on the basis of its PIL and, on the basis of the Rome I Regulation, may decide to apply the provisions of the country of temporary employment (Art. 9(3).) in addition to those of the country of habitual employment (Art. 8.) which is not compulsory on the one hand, and on the other hand requires that those overriding mandatory provisions render the execution of the contract unlawful. Now this is no longer possible.
- 32.
See CJEU 12 October 2004, Wolff and Müller, C-60/03, ECLI:EU:C:2004:610, para 30.
- 33.
See also Article 9 of the Rome I Regulation. Without prejudice to Article 4(2), the law applicable to a non-contractual obligation in respect of the liability of a person in the capacity of a worker or an employer or the organisations representing their professional interests for damages caused by an industrial action, pending or carried out, shall be the law of the country where the action is to be, or has been, taken. At the time, however, following the Viking case, there was a discussion as to whether it would not be better to give exclusive jurisdiction to the place where the industrial action took place. (CJEU 11 December 2007, International Transport Workers’ Federation and Finnish Seamen’s Union v Viking Line ABP and OÜ Viking Line Eesti, C-438/05, ECLI:EU:C:2007:772.)
- 34.
See also CJEU 5 February 2004, DFDS Torline, C-18/02, ECLI:EU:C:2004:74.
- 35.
Van Hoek (2000), p. 64.
- 36.
See recital 21 of Advocate-General Wahl in CJEU 12 September 2013, Schlecker v Boedeker, C-64/12, ECLI:EU:C:2013:551.
- 37.
Van Overbeeke (2018), p. 145.
- 38.
Deinert (2017), p. 8.
- 39.
In contrast to a subjective connecting factor such as the will of the parties. Other objective connecting factors could be the place where the contract is concluded, the place of business of the employer, the place of residence or domicile of the employee or the nationality of the parties.
- 40.
See recital 6 of the Rome I Regulation: The proper functioning of the internal market creates a need, in order to improve the predictability of the outcome of litigation, certainty as to the law applicable and the free movement of judgments, for the conflict-of-law rules in the Member States to designate the same national law irrespective of the country of the court in which an action is brought. We have already pointed out that choice-of-forum clauses are also permitted to a very limited extent in this respect.
- 41.
Art. 9(2) of the Rome I Regulation.
- 42.
Art. 21 of the Rome I Regulation.
- 43.
It thus designates the substantive labour law of a Member State which will regulate the legal relationship. This is because European law has only harmonised certain aspects of labour law.
- 44.
Especially in labour law, the interests of the State in which the labour law is embedded also play a major role. In order to safeguard these interests, the Rome I Regulation has a multiple referral rule. We can also think of the numerous international treaties on social law.
- 45.
- 46.
See Schuler (1988), p. 205.
- 47.
A distinction is made here between spatial scope (on which territory a State can exercise and promulgate acts of sovereignty) and business scope (to which situations and facts a State can apply these norms). (Verdross and Simma (2010), p. 762, para 1167.) Therefore, legislators are neither forced to limit their legislation to situations that occur on their territory nor to demarcate the legislation territorially. (Von Maydell (1967), p. 71.) and Schuler (1988), p. 205.
- 48.
Art. 1 of the Rome I Regulation.
- 49.
See the report of Giuliano and Lagarde (1980), pp. 1–50.
- 50.
See Art. 3(3) of the Rome I Regulation.
- 51.
See Art. 2 of the Rome I Regulation.
- 52.
Deneve (2004), pp. 596–597.
- 53.
See Art. 1(1) of the Rome I Regulation.
- 54.
Art. 1(1) of the Rome I Regulation.
- 55.
CJEU 14 November 2002, Gemeente Steenbergen v Luc Baten, C-271/00, ECLI:EU:C:2002:656, recital 46. ‘But regardless of the qualification required under Art. 4 of Regulation 1408/71 (now: 883/2004) (substantive scope) to be given to social assistance benefits paid by a public body to persons who have no means of subsistence, the action which that institution brings against a third party, a private individual in his capacity as a debtor of supported persons, does not concern the conditions for the granting of the benefits in question, but the recovery of the amounts paid on that basis. The object of the dispute is therefore not related to the application of Regulation 1408/71. The Court had previously held that while the EEX Convention may apply to certain decisions in disputes between a public authority and a private person, this is not the case where the public authority acts on the basis of public authority competence (CJEU 14 October 1976, LTU v Eurocontrol, C-29/7, ECLI:EU:C:1976:137.).
- 56.
CJEU 3 June 1992, Paletta, C-45/90, ECLI:EU:C:1992:236, para 19.
- 57.
CJEU 15 May 2003, Préservatrice foncière TIARD SA v Staat der Nederlanden, C-266/01, ECLI:EU:C:2003:282.
- 58.
Rigaux and Fallon (2005), p. 889.
- 59.
Art. 1(1) of the Rome I Regulation.
- 60.
Krebber (2020a), pp. 574–575.
- 61.
Contrary to the Posting Directive: For the purposes of this Directive, the definition of a worker is that which applies in the law of the Member State to whose territory the worker is posted (Article 2(2) of Directive 96/71.).
- 62.
However, it is assumed that the Regulation also applies to void contracts, as well as to purely de facto employment relationships, in particular those where the legal rules of contract law designed to protect the employee have not been respected: see the report of Giuliano and Lagarde (1980), p. 26.
- 63.
Deinert (2017), p. 44.
- 64.
- 65.
CJEU 10 September 2015, Holterman Ferho Exploitatie BV and Others v F.L.F. Spies von Büllesheim, C-47/14: ECLI:EU:C:2015:574, paras 35, 39 and 40.
- 66.
CJEU 10 September 2015, Holterman Ferho Exploitatie BV and Others v F.L.F. Spies von Büllesheim, C-47/14: ECLI:EU:C:2015:574, para 7.
- 67.
CJEU 10 September 2015, Holterman Ferho Exploitatie BV and Others v F.L.F. Spies von Büllesheim, C-47/14: ECLI:EU:C:2015:574, paras 45–46.
- 68.
- 69.
- 70.
As far as bogus self-employment is concerned. Triangular employment relationships pose no problem at all as there is an employment contract anyway but it is unclear who the employer is (e.g. temporary employment agency or user).
- 71.
Franzen puts forward a fourth possibility, i.e. the law of the place of habitual employment. (Krebber (2020a), p. 576.)
- 72.
See the report of Giuliano and Lagarde (1980), p. 25.
- 73.
- 74.
In this sense, the Directive is a unilateral conflict rule: it requires the law of the country of employment to be applied to the matters covered by the Directive but does not preclude the country of origin from regulating the same matters in relation to the same group of employees (see Van Hoek (2000), p. 544.).
- 75.
See further under, this chapter, Sect. 3.2.3.2.
- 76.
Nevertheless, this does not imply that sometimes parties approach the actual situation in an inventive way in order to fall under this or that attachment rule.
- 77.
In general, however, it is noted that parties do not always attach great importance to a search for a particular legal system and that a choice is not always made. If any choice is made at all, the law of a country with which one is familiar, such as the law of the country in which the company has its registered office, is often chosen. It is very exceptional that one will opt for a rather exotic foreign law. That choice is often motivated by business reasons and the concrete interests of the undertaking and not so much by the social law consequences. It is also more likely that large multinational companies will make such a choice than that SMEs will do this. The fact is that the former have more resources at their disposal to gather concrete information about the applicable law and its consequences through their network of lawyers. After all, very high costs arise if one wants to be informed about the advantages and disadvantages of the choice of a particular law, let alone those of each individual rule (for a detailed overview, see Magnus and Mankowski (2017), pp. 112–121.). In addition, the choice of a particular legal system is often not the subject of individual negotiations but follows from the general clauses of the general terms and conditions within a company.
- 78.
Paragraph 13 of the Rome I Regulation states that this regulation shall not affect the possibility for the parties to incorporate in their agreement a non-State body of law or an international agreement by referring to it. Nothing prevents parties from referring to rules as they occur in e.g. ILO conventions or international organisations such as sports associations. However, it concerns substantive rules and not conflict-of-law rules (see also Deinert (2017), p. 106.). In the European Commission’s proposal for this Regulation, this was considered possible and a further Article 3(2) was suggested which stated that ‘the parties may also choose as the applicable law principles and rules of substantive contract law which are recognised at international or Community level’. One particularly had in mind the future EU instruments that would harmonise substantive law and efforts to standardise European private law such as UNIDROIT. In labour law, the choice is actually rather limited to the Posting of Workers Directive. The relation between this Directive and the Rome I Regulation is arranged in separate clauses. (See Article 23 of the Rome I Regulation.) In the end, this provision was not adopted. The non-choice is explained by the fact that these rules are often too general and therefore unable to provide sufficient guarantees for employees (Krebber (2020a), p. 581.). One can also question whether rules from private organisations (e.g. the FIFA regulations) all comply with what is understood by law (see also extensively Magnus and Mankowski (2017), p. 187.).
- 79.
Art. 3(2) of the Rome I Regulation. A change in the law chosen by the parties after the conclusion of the contract shall not affect its formal validity within the meaning of Article 11 and shall not prejudice the rights of third parties.
- 80.
Art. 3(1) of the Rome I Regulation. According to Article 10, the existence and validity of the contract or one of its provisions is governed by the law that would be applicable under the Convention, if the contract or provision would be valid. It is therefore necessary to check, on the basis of the chosen law, whether the permission was granted consensus ad idem and whether it is valid.
- 81.
Art. 7 of Directive 2019/1152 of the European Parliament and of the Council of 20 June 2019 on transparent and predictable working conditions in the European Union (2019) OJ L186.
- 82.
- 83.
Magnus and Mankowski (2017), p. 123.
- 84.
An implicit choice for a certain judicial system may be inferred from the fact that the employment contract effectively refers to the content of a provision of law in a given country, without making any explicit reference to that section of law and/or law.
- 85.
Magnus and Mankowski (2017), p. 141.
- 86.
Consideration 12 in the preamble of the Rome I Regulation.
- 87.
See also Van Der Plas (2008), p. 319.
- 88.
Magnus and Mankowski (2017), pp. 142–143.
- 89.
Van Hoek (2000), pp. 376–377.
- 90.
See also Deinert (2017), pp. 107 et seq.
- 91.
According to some, it is a perversion of party autonomy to allow parties to select provisions from different legal systems and make a mosaic, based on their own tastes. See in that sense also Magnus and Mankowski (2017), p. 214.
- 92.
- 93.
Engels (2000), p. 159.
- 94.
- 95.
It is therefore irrelevant whether someone carries out work in different places within a country. Article 22 of the Rome I Regulation only stipulates the following: Where a State comprises several territorial units, each of which has its own rules of law in respect of contractual obligations, each territorial unit shall be considered as a country for the purposes of identifying the law applicable under this Regulation. This is, for instance, the case for the United States of America.
- 96.
In that sense, this also plays a role in determining whether a tacit choice was made. One must realise that in making a choice, one deviates from the objective law.
- 97.
E.g. country of nationality of the employer.
- 98.
CJEU 16 December 2010, Heiko Koelzsch v État du Grand Duchy of Luxemburg, C-29/10, ECLI:EU:C:2010:789, para 42.
- 99.
- 100.
On the basis of the principle of non-discrimination according to the free movement of workers (see Jorens et al. (2014).), workers cannot be discriminated against on grounds of nationality. See also Article 7 of Regulation (EU) 492/2011 of the European Parliament and of the Council of 5 April 2011 on freedom of movement for workers within the Union (2011) OJ L141. Otherwise, the different treatment is the result of a different applicable law. In that respect, a different treatment through application of the rules on conflict of laws cannot constitute discrimination. This is, for example, also the case when applying Article 8 of Regulation 492/2011 (Krebber (2020a), p. 588.).
- 101.
CJEU 16 December 2010, Heiko Koelzsch v État du Grand Duchy of Luxemburg, C-29/10, ECLI:EU:C:2010:789, para 45 and CJEU 15 December 2011, Jan Voogsgeerd v Navimer SA, C-384/10, ECLI:EU:C:2011:842, para 37.
- 102.
- 103.
See CJEU 15 December 2011, Jan Voogsgeerd v Navimer SA, C-384/10, ECLI:EU:C:2011:842, paras 52 et seq. And see below under, this chapter, Sect. 3.2.2.2.2.2.
- 104.
The wording ‘from where’ was introduced when the Rome I Regulation was established and was the direct result of the Court of Justice’s ruling in a number of court cases concerning the court having jurisdiction. (See more specifically CJEU 13 July 1993, Mulox IBC Ltd v Hendrick Geels, C-125/92, ECLI:EU:C:1993: 306, para 25 and CJEU 27 February 2002, Herbert Weber v Universal Ogden Services Ltd., C-37/00, ECLI:EU:C:2002:12, paras 44 and 49.)
- 105.
CJEU 16 December 2010, Heiko Koelzsch v État du Grand Duchy of Luxemburg, C-29/10, para 45.
- 106.
CJEU 16 December 2010, Heiko Koelzsch v État du Grand Duchy of Luxemburg, C-29/10, ECLI:EU:C:2010:789, para 48.
- 107.
COM (2005) 650, final. For instance, this modification made it possible to apply the rule to staff working on board an aircraft, on the condition that there is a fixed workplace from which the work is organised and where the staff in question fulfils all other obligations towards the employer (check in, security check).
- 108.
However, this distinction is rather relative. In the Voogsgeerd case the person concerned worked on two vessels on the North Sea and returned to the undertaking after every sea journey to receive instructions. (CJEU 15 December 2011, Jan Voogsgeerd v Navimer SA, C-384/10, ECLI:EU:C:2011:842.)
- 109.
CJEU 15 December 2011, Jan Voogsgeerd v Navimer SA, C-384/10, ECLI:EU:C:2011:842, para 39.
- 110.
Houwerzijl and Van Hoek (2016), p. 230.
- 111.
CJEU 13 July 1993, Mulox IBC Ltd v Hendrick Geels, C-125/92, ECLI:EU:C:1993: 306, para 25 and CJEU 9 January 1997, Petrus Wilhelmus Rutten v Cross Medical Ltd., C-32/88, ECLI:EU:C:1997:7, para 57.
- 112.
CJEU 16 December 2010, Heiko Koelzsch v État du Grand Duchy of Luxemburg, C-29/10, ECLI:EU:C:2010:789, paras 48 and 49 and CJEU 15 December 2011, Jan Voogsgeerd v Navimer SA, C-384/10, ECLI:EU:C:2011:842, para 38.
- 113.
CJEU 14 September 2017, Sandra Nogueira e.a. v Crewlink Ireland Ltd and Michel José Moreno Osacar v Ryanair Designated Activity Company, C-168/16 and C-169/16, ECLI:EU:C:2017:688, para 64.
- 114.
As established in Annex III to Regulation No 3922/91, this is the place from which air crew systematically start and end their working day by organising their daily work at that place and in the vicinity of which they are resident and at the disposal of the air carrier during the period in which the contract of employment is performed.
- 115.
In the Nogueira the Court points out that consequently, the concept of ‘place where or from which the employee habitually carries out his work’ cannot be assimilated to an arbitrary concept in another act of Union law such as the home base. (CJEU 14 September 2017, Sandra Nogueira e.a. v Crewlink Ireland Ltd and Michel José Moreno Osacar v Ryanair Designated Activity Company, C-168/16 and C-169/16, ECLI:EU:C:2017:688, paras 64–65.) In an indirect way, the home base may however play a role, as it can only be taken into account in so far as it reinforces the indications referred to above as being relevant for the determination of that place. See para 69.
- 116.
CJEU 14 September 2017, Sandra Nogueira e.a. v Crewlink Ireland Ltd and Michel José Moreno Osacar v Ryanair Designated Activity Company, C-168/16 and C-169/16, ECLI:EU:C:2017:688, para 62.
- 117.
To which another rule applies (Article 8(4).).
- 118.
In the Weber case, Advocate General Jacobs points out in paragraph 52 that the situation would become extremely difficult in such circumstances, if it would, for instance, appear that the employee had worked less than half the duration of his employment in one and the same country and spread out the rest, i.e. the major part, of his employment in time and space. In judging such a situation, it should not so much be the mathematical that takes precedence, but rather the question of how all these jobs relate to each other in terms of interest. In assessing where a person has carried out his activities, rather than taking account of the entire duration of employment, everything should be placed in its overall context, taking account of all the circumstances. (CJEU 27 February 2002, Herbert Weber v Universal Ogden Services Ltd., C-37/00, ECLI:EU:C:2002:12.)
- 119.
The Court also seems to realise this by pointing out that the nature and importance of the work carried out in each of the States Parties may play a role in this respect.
- 120.
CJEU 27 February 2002, Herbert Weber v Universal Ogden Services Ltd., C-37/00, ECLI:EU:C:2002:12, paras 50 and 51. See also Magnus and Mankowski (2017), pp. 589–590.
- 121.
CJEU 16 December 2010, Heiko Koelzsch v État du Grand Duchy of Luxemburg, C-29/10, ECLI:EU:C:2010:789, para 43 and CJEU 15 December 2011, Jan Voogsgeerd v Navimer SA, C-384/10, ECLI:EU:C:2011:842, para 35.
- 122.
See in that sense CJEU 9 January 1997, Petrus Wilhelmus Rutten v Cross Medical Ltd., C-32/88, ECLI:EU:C:1997:7, para 22; CJEU 10 April 2003, Giulia Pugliese v Finmeccanica SpA, Betriebsteil Alenia Aerospazio, C-437/00, ECLI:EU:C:2003:219, para 18 and CJEU 16 December 2010, Heiko Koelzsch v État du Grand Duchy of Luxemburg, C-29/10, ECLI:EU:C:2010:789, para 41.
- 123.
See also Knöfel (2014), p. 131.
- 124.
CJEU 15 December 2011, Jan Voogsgeerd v Navimer SA, C-384/10, ECLI:EU:C:2011:842, para 34.
- 125.
CJEU 15 December 2011, Jan Voogsgeerd v Navimer SA, C-384/10, ECLI:EU:C:2011:842, para 52.
- 126.
- 127.
CJEU 15 December 2011, Jan Voogsgeerd v Navimer SA, C-384/10, ECLI:EU:C:2011:842, para 47.
- 128.
CJEU 15 December 2011, Jan Voogsgeerd v Navimer SA, C-384/10, ECLI:EU:C:2011:842, para 51.
- 129.
CJEU 15 December 2011, Jan Voogsgeerd v Navimer SA, C-384/10, ECLI:EU:C:2011:842, para 55.
- 130.
CJEU 15 December 2011, Jan Voogsgeerd v Navimer SA, C-384/10, ECLI:EU:C:2011:842, paras 63 and 64.
- 131.
See also Knöfel (2014), p. 135.
- 132.
Inland waterways are covered by the State concerned.
- 133.
Maximum 12 miles.
- 134.
In principle up to 200 miles. See also the United Nations Convention of Montego Bay of 16 November 1994 on the Law of the Sea, OJ 23 June 1998.
- 135.
See CJEU 17 January 2012, A. Salemink v Raad van bestuur van het Uitvoeringsinstituut werknemersverzekeringen, C347/10, ECLI:EU:C:2012:17, para 35. See in that sense also CJEU 27 February 2002, Herbert Weber v Universal Ogden Services Ltd., C-37/00, ECLI:EU:C:2002:12.
- 136.
‘For the purpose of exploring and exploiting the natural resources of the shelf’ and as regards the construction and use of artificial islands, installations and structures. (Arts. 56–77 of the United Nations Convention of Montego Bay of 16 November 1994 on the Law of the Sea, OJ 23 June 1998.).
- 137.
The wording mentions ‘for example’.
- 138.
See also Knöfel (2014), p. 133.
- 139.
In the Voogsgeerd case at issue (CJEU 15 December 2011, Jan Voogsgeerd v Navimer SA, C-384/10, ECLI:EU:C:2011:842.), the person concerned was the first engineer on board two vessels whose area of operation was the North Sea. According to the Court, it follows from the fact that the person concerned was working in the North Sea that he was not employed in a country and the Court then went in search of the employer’s place of establishment. (see Cass. 25 November 2013, No S.09.001.N.9.) In view of the fact that employment on the North Sea often entails sailing in territorial waters and in the exclusive economic zone (and therefore not on the open sea, which is after all not a State), it must also be possible for the courts to find out the place of habitual employment on the basis of all kinds of information. See also Knöfel (2014), p. 133.
- 140.
Council Directive 2009/13/EC of 16 February 2009 implementing the Agreement concluded by the European Community Shipowners’ Associations (ECSA) and the European Transport Workers’ Federation (ETF) on the Maritime Labour Convention, 2006, and amending Directive 1999/63/EC (2009) OJ L124.
- 141.
See e.g. with reference to extensive legal literature: Carballo Pineiro (2015), p. 191.
- 142.
Art. 2.1.1.a of the Maritime Labour Convention: Each Member shall adopt laws or regulations requiring that ships that fly its flag comply with the following requirements: seafarers working on ships that fly its flag shall have a seafarers’ employment agreement signed by both the seafarer and the shipowner or a representative of the shipowner (or, where they are not employees, evidence of contractual or similar arrangements) providing them with decent working and living conditions on board the ship as required by this Convention. And Arts. 5.1.1.1 and 5.1.1.2 of the Maritime Labour Convention: Each Member is responsible for ensuring implementation of its obligations under this Convention on ships that fly its flag.
Each Member shall establish an effective system for the inspection and certification of maritime labour conditions, in accordance with Regulations 5.1.3 and 5.1.4 ensuring that the working and living conditions for seafarers on ships that fly its flag meet, and continue to meet, the standards in this Convention.
The fact that activities on a ship are assigned to a certain country (flag State) does not mean that as a result the activities are also carried out on the territory of that country, because otherwise one would never be operating in several countries.
- 143.
For some authors, this leads to the preference to still use the flag State as a connecting factor (Magnus and Mankowski (2017) and Carballo Pineiro (2015)). Contrary to coordination Regulation 883/2004, which does refer to the flag State—and in some circumstances, alternatively, to the country in which the undertaking is established—as the applicable legislation in relation to applicable social security legislation: (Art. 11(4) of Regulation (EC) 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems (2004) OJ L166.) For the purposes of this Title, an activity as an employed or self-employed person normally pursued on board a vessel at sea flying the flag of a Member State shall be deemed to be an activity pursued in the said Member State. However, a person employed on board a vessel flying the flag of a Member State and remunerated for such activity by an undertaking or a person whose registered office or place of business is in another Member State shall be subject to the legislation of the latter Member State if he resides in that State. The undertaking or person paying the remuneration shall be considered as the employer for the purposes of the said legislation.
- 144.
For example, Carballo and others point out that in the Voogsgeerd case (CJEU 15 December 2011, Jan Voogsgeerd v Navimer SA, C-384/10, ECLI:EU:C:2011:842.), the flag State is not mentioned anywhere as a possible inspiration/connecting factor. However, for this author, this also implies that the question of the possible application of the flag State remains unanswered. Carballo Pineiro (2015), p. 196.
- 145.
As a result of which an alternative rule or condition is often considered in countries (often nationality or registration of the ship). See Carballo Pineiro (2015), pp. 193–194. Article 91 of the Law of the Sea Convention provides that each State shall lay down the conditions for granting its nationality to ships, for the registration of ships in its territory and for the right to fly its flag. This requires, however, that there be a substantial connection between the State and the ship to which the right to fly the flag of the State in question is granted. This provision only deals with enforcement and does not therefore state that the rules of that State are applicable.
- 146.
See Carballo Pineiro (2015), p. 20 and Commission communication C(2004) 43—Community guidelines on State aid to maritime transport (2004) OJ C13/3 and 13/8.
- 147.
See the Sloman case where the question of such a different regime was contested on the basis of possible prohibited State aid. (CJEU 17 March 1993, Sloman Neptun, C-72/91, ECLI:EU:C:1993:91.) Unlike the Court, in this case the Advocate General did address the question of the applicable labour law of the seafarers concerned.
- 148.
In their report, Giuliano and Lagarde point out that the Group did not seek a special rule for the work of members of the crew on board a ship. (See Art. 6(4) in Giuliano and Lagarde (1980), p. 26.)
- 149.
Deinert (2017), p. 171.
- 150.
See above, this chapter, Sect. 3.2.2.2.2.2.
- 151.
See also Magnus (2005), p. 149.
- 152.
See Opinion of Advocate General Damon in CJEU 17 March 1993, Sloman Neptun, C-72/91, ECLI:EU:C:1993:91, para 87 and Magnus (1994), p. 180.
- 153.
That amounts to 2 year. Nonetheless, there may not be lost sight of the fact that labour law and social security law do not share the same objectives. Social security regulations aim to maintain balance between the contributions received and the benefits payable.
- 154.
This directive aims to put posted workers on a more equal footing with local workers from a labour law perspective. The Commission’s proposal to revise Directive 96/71 proposed the insertion of a new Article 2a stating that ‘When the anticipated or the effective duration of posting exceeds twenty-four months, the Member State to whose territory a worker is posted shall be deemed to be the country in which his or her work is habitually carried out’ (COM (2016) 128 final.). As a result, the law of this country would have become the objectively applicable law within the meaning of Article 8 of the Rome I Regulation. In the end, this provision was not adopted. See below under, this chapter, Sect. 3.2.3.4.4.1.
- 155.
When quantifying, should this be done in relation to the duration of ‘normal employment’? Does the fact, for example, that the duration of the posting is longer than the time worked in the State of origin before the posting mean that there can be no question of temporary employment? Suppose that someone has worked in Member State A for 1 year and is subsequently sent to Member State B for 2 years. Is that a case of temporary employment abroad? In case of an employee who has previously worked for an employer in Member State A for 10 years, this will generally be considered less of a problem. Is it still ‘temporary’ when an employee had already worked 30 years for his employer at the same place in Member State A and now goes working abroad for 6 years? Compared to a period of 30 years, 6 years is relatively limited and temporary. However, if, for example, this employee had only worked for his employer in Member State A for 5 years, this could be interpreted very differently. Therefore, temporariness is a relative concept which would depend on the moment a person is sent abroad in his career, which cannot be the intention.
- 156.
See also the proposal of Van Hoek (in Van Hoek (2000), p. 444.) who is of the opinion that the applicable law should change in case of a posting exceeding 5 years. This cannot be followed according to the idea that the intention of the parties is paramount.
- 157.
Regarding the difficult interplay with Directive 96/71 and the Enforcement Directive 2014/67, see below, this chapter, Sect. 3.2.3.4.4.
- 158.
Recital 36. In the proposal for the Rome I Regulation, this was expressly included in the Regulation itself. (Proposal for a Regulation of the European Parliament and the Council on the law applicable to contractual obligations (Rome I).) We can assume that the objective remains the same.
- 159.
- 160.
- 161.
However, the escape clause in Article 8(4) may come into play here.
- 162.
- 163.
See also De Ceuster (1987), p. 161.
- 164.
Contra Max Planck Institute for Foreign Private and Private International Law (2004), p. 63.
- 165.
In favour of the latter view: Van Lent (2000), p. 127.
- 166.
CJEU 21 October 2004, Commission of the European Communities v Grand Duchy of Luxemburg, C-445/03, ECLI:EU:C:2004:665, para 32; see also for similar rules CJEU 21 September 2006, Commission of the European Communities v Republic of Austria, C-168/04, ECLI:EU:C:2006:595, para 50 and CJEU 19 January 2006, Commission of the European Communities v Federal Republic of Germany, C-244/04, ECLI:EU:C:2006:49, para 63.
- 167.
CJEU 19 January 2006, Commission of the European Communities v Federal Republic of Germany, C-244/04, ECLI:EU:C:2006:49, para 55.
- 168.
As opposed to the social security regulations. Under these regulations, the existence of different employment contracts as such is irrelevant in so far as they are exercised in a single Member State. This is only different if a worker pursues activities for different employers in the territory of different Member States, in which case one then looks for a single applicable legislation. (See below Chap. 4, Sect. 4.1.5.2.3.2.)
- 169.
Or is established on the basis of the actual employment relationship. In some cases, the conclusion of a separate agreement between the employee concerned and the second subsidiary is necessary in order for the employee concerned to be able to take certain actions for the latter or to receive certain benefits.
- 170.
It suffices here to point out that, in the social security regulations, the conclusion of a local employment contract with the host company is deemed to exclude the application of the posting provisions. (See below under Chap. 4, section “Second Condition: Direct Relationship Between the Employee and the Posting Employer”.)
- 171.
Recital 36 of Regulation (EC) 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I).
- 172.
In that sense, it concerns forms of posting that do not fall under Posting of Workers Directive 96/71. In accordance with Article 1(3)(b) of that Directive, there is posting within a group only if there is also an employment relationship between the posted worker and the posting employer and, consequently, no contract of employment is concluded with the undertaking in the host State.
- 173.
By analogy, one can also consider the situation where an employee works simultaneously for two group companies.
- 174.
In addition to the question of employment contracts, there is also the possibility that e.g. a mother company and a subsidiary company enter into an agreement with each other, in which a number of modalities are determined with regard to the employment of the employee concerned of the sending company with the host company. This may involve, for example, a number of provisions relating to the concrete payment of wages or any aspects relating to the exercise of the right of instruction. As far as this agreement between the two companies is concerned, it is a (service) agreement subject to the general provisions of Article 4 of the Rome I Regulation. In accordance with this article, in the absence of choice of law, the obligation will be subject to the country of the service provider’s habitual residence. See also Jorens (2009a), pp. 113–125 (A) and Van Lent (2000), p. 216.
- 175.
Here, too, the remark applies that the longer the employment in the second State lasts, the more question marks arise around the idea of return.
- 176.
See Mankowski (2004), pp. 133 et seq.
- 177.
The difference with normal forms of posting is that the employer does not carry out activities for his posting employer but is active for the host company and is therefore also under his authority. However, the employee in question does not seek access to the local labour market.
- 178.
Contra Däubler (1987), p. 254.
- 179.
See Jorens (2009a), pp. 113–225 (A) and Deinert (2017), p. 146.
In the context of the problem of the court having jurisdiction, the Court of Justice had granted some sort of security in the Pugliese case (CJEU 10 April 2003, Giulia Pugliese v Finmeccanica SpA, Betriebsteil Alenia Aerospazio, C-437/00, ECLI:EU:C:2003:219.), by stipulating that, even in the event of suspension of the first contract, the court in the country of second employment has jurisdiction over the action against the first employer. It concerned an Italian national who had been employed by an Italian employer and was then posted to Germany. The Italian company had a shareholding in the German one. The contract with the Italian employer was suspended, with some parts of the employment contract continuing to have effect, and a new employment contract was concluded with the German company. The Court is of the opinion that the court in the country of second employment also has jurisdiction for the claim against the first employer if the latter has an interest in the performance of the service for the second employer (paras 24–26). Whether there is an interest must in particular be inferred from all the circumstances, such as the fact that the first contract has been amended because of the conclusion of the second contract; that the first employer could decide on the duration of employment with the second employer; and that, for example, there are close organisational and economic ties between the two employers and that there is an agreement between the two employers which creates a framework for the coexistence of the two contracts. Today, the Regulation includes the possibility for an employee to sue both his employer and the third party together. (Art. 8 of Regulation (EU) 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (2012) OJ L351).
To us, it seems less defensible to also foresee this possibility by analogy. (See also Deinert (2017), p. 147.) As, on the one hand, this does not really contribute to worker protection and, on the other hand, it is certainly not in line with the philosophy of paragraph 36.
- 180.
E.g. on supplementary pension schemes. Conflicts which may be resolved by choice of law, not least in order to resolve certain suspended benefits and thus to achieve uniformity between the two agreements.
- 181.
See also Jorens et al. (2009), p. 19.
- 182.
See Art. 3 of Directive 2009/38/EC of the European Parliament and of the Council of 6 May 2009 on the establishment of a European Works Council or a procedure in Community-scale undertakings and Community-scale groups of undertakings for the purposes of informing and consulting employees (2009) OJ L122.
- 183.
Strikwerda (2002), pp. 36–37.
- 184.
Strikwerda (2002), p. 55.
- 185.
See recital 21 of Advocate General Wahl in CJEU 12 September 2013, Schlecker v Boedeker, C-64/12, ECLI:EU:C:2013:551.
- 186.
However, this starting point must be put into perspective. It is, in principle, not certain at all whether an employer actually choses a legal system on the basis of the weaker position that an employee would be in. It is not so much the content of one legal system that is excluded, as it is replaced by similar provisions of another legal system. Rather than losing the protection provided for by the substantive law of State A, the worker concerned is subject to the application of the substantive law provisions of State B. To the extent that the substantive provisions of State A and B are similar, an employee will therefore not be worse off. (Gamillsheg and Franzen (2014), p. 215.).
- 187.
Art. 3(3) of Rome I Regulation.
- 188.
Except for the choice of competent law and court, the possession of shares, for example, or the mere use of the Internet, or the use of a certain language are not considered sufficient to speak of an international situation.
- 189.
- 190.
Art. 3(4) of the Rome I Regulation.
- 191.
See Art. 153(2)(b): In the areas referred to in paragraph 1(a)–(i), the European Parliament and the Council may, by means of directives, lay down minimum requirements to be applied gradually. However, if Member States go beyond the EU requirements, it is preferable that their rules are also applied. Deinert (2017), p. 119 and Magnus and Mankowski (2017), pp. 240–241.
- 192.
Moreover, it is noteworthy that, generally speaking, not many cases of this situation are known in the jurisprudence.
- 193.
In international situations, these provisions are thought to be applicable if they form part of the law applicable to the employment contract.
- 194.
They can therefore be distinguished from the special mandatory rules (as set out in Article 9) which relate to mandatory rules of international law. See also recital 37 of the Rome I Regulation.
- 195.
See recital 48 of Advocate General Trstenak in CJEU 15 December 2011, Jan Voogsgeerd v Navimer SA, C-384/10, ECLI:EU:C:2011:842.
- 196.
See also recital 34 of Advocate General Wahl in CJEU 12 September 2013, Schlecker v Boedeker, C-64/12, ECLI:EU:C:2013:551.
- 197.
Which makes little sense and is, of course, completely impossible.
- 198.
Deneve (1993), pp. 393 et seq.
- 199.
- 200.
Suppose that the posting State guarantees 12 Catholic holidays, without loss of pay and that in the case of activities performed in a Muslim state, there are also 10 paid holidays. This does not entail that one is suddenly entitled to 22 days’ holiday. Gamillsheg and Franzen (2014), p. 218.
- 201.
- 202.
- 203.
Deinert states that this is not the case. (Deinert (2017), p. 124.).
- 204.
Calligaro (1998), p. 149.
- 205.
Calligaro (1998), p. 149.
- 206.
- 207.
Recital 49 of Advocate General Trstenak in CJEU 15 December 2011, Jan Voogsgeerd v Navimer SA, C-384/10, ECLI:EU:C:2011:842.
- 208.
See Krebber (2020a), p. 582.
- 209.
See also recital 48 of Advocate General Trstenak in CJEU 15 December 2011, Jan Voogsgeerd v Navimer SA, C-384/10, ECLI:EU:C:2011:842.
- 210.
Art. 8(4) of the Rome I Regulation.
- 211.
Van Overbeeke (2018), p. 263.
- 212.
See Magnus and Mankowski (2017), p. 596 and recital 58 of Advocate General Wahl in CJEU 12 September 2013, Schlecker v Boedeker, C-64/12, ECLI:EU:C:2013:551. In my view, this desire to limit recourse to the general exception clause in Article 4 of the Rome Convention seems to be all the more proven now that, as appears from the preparatory work, its deletion has even been envisaged for some time.
- 213.
- 214.
See CJEU 12 September 2013, Schlecker v Boedeker, C-64/12, ECLI:EU:C:2013:551. The facts are as follows: Mrs Boedeker was employed by Schlecker, a German company with branches in various Member States. She was employed in Germany from 1979 to 1994, after which she concluded a new employment contract on the basis of which she became a manager in the Netherlands until 2006. Then her post was removed, and she was transferred to Germany. She opposed this unilateral change and invoked the protection of Dutch dismissal law. However, the employer considered that although she was subject to Dutch law as a place of habitual employment, the case was more closely connected with German law. The question now was whether the person concerned could invoke Dutch law which was more favourable to her?
- 215.
CJEU 12 September 2013, Schlecker v Boedeker, C-64/12, ECLI:EU:C:2013:551, para 40: Nevertheless, as the Commission emphasised, the court called upon to rule in a particular case cannot automatically conclude that the rule of the place of habitual employment must be disregarded solely because, by dint of their number, the other relevant circumstances—apart from the actual place of work—would result in the selection of another country.
- 216.
Based on which agreement or national scale?
- 217.
- 218.
Van Hoek (2019), p. 44.
According to the Advocate General, a number of criteria are of lesser importance. By contrast, the fact that the parties to the contract concluded it in a particular country, that they are of a particular nationality, or that they chose to reside in a particular country constitute parameters of lesser importance. Similarly, decisive importance should not be attached to the language in which the employment contract was drawn up or the fact that it refers to a particular currency, although they may constitute relevant factors.
- 219.
Magnus and Mankowski (2017), p. 595.
- 220.
- 221.
In particular because of the special insurance law position of the person concerned, where, contrary to the normal rules of tax law and social security law, that person was in fact still insured in her country of residence and not in her country of employment. (Van Hoek (2019), pp. 45–47. See also Van Den Eeckhout (2014), pp. 3–8.
- 222.
Magnus and Mankowski (2017), p. 586. The Advocate General in the Schlecker case also seems to realise this to some extent by stipulating that it should not be the intention that the place of habitual employment becomes a marginal place and is put aside, which also negates the predictability of the solutions ultimately chosen. (CJEU 12 September 2013, Schlecker v Boedeker, C-64/12, ECLI:EU:C:2013:551, para 61.)
- 223.
See also Deinert (2017), p. 155.
- 224.
For example, it may be considered that a contract concluded in France between a French employer and a French worker to carry out activities in an African country for 2 years, possibly with the promise of a new job in France after the expiry of the contract, should not be governed by the law of the African country where the contract is to be performed but by French law, with which the contract has the closest connection (see COM (2002) 654 final, footnote 78). See also Van Hoek (2019), pp. 48–49.
- 225.
Although Article 8(1) also puts the favourability comparison first with regard to this ‘derogation clause’.
- 226.
Taking into account all favourability principles which must also be applied.
- 227.
Let us not forget that Article 8 mainly considers the individual interests of the contracting parties and is less concerned with the general interest.
- 228.
And whether this follows from the free choice of the parties or is determined by the conflict rules laid down in Article 8. Max Planck Institute for Foreign Private and Private International Law (2004), p. 54.
- 229.
Article 9 does not contain a favourability condition either, so it is not excluded that the more favourable provisions of Article 8 will continue to apply.
- 230.
Max Planck Institute for Foreign Private and Private International Law (2004), p. 55.
- 231.
- 232.
- 233.
Recital 37 of the Preamble of Regulation (EC) 593/2008 and CJEU 8 December 2020, Republic of Poland v European Parliament and Council of the European Union, C-626/18, ECLI:EU:C:2020:1000, para 135.
- 234.
This was lacking in the Rome Convention. Under the Rome Convention, there was confusion because all the provisions were collectively referred to as ‘mandatory provisions’. Today, they are referred to as ‘provisions that cannot be derogated from by agreement’, overriding mandatory provisions, and public policy.
- 235.
In addition, the Arblade case, despite its wording, does not seem to exclude a broad interpretation. After all, this case also concerns regulations—such as the minimum wage—that are more attuned to private interests. (CJEU 23 November 1999, Arblade Leloup, C-369/96 and C376/96, ECLI:EU:C:1999:575.)
- 236.
CJEU 23 November 1999, Arblade Leloup, C-369/96 and C376/96, ECLI:EU:C:1999:575, para 30. In the Arblade case, the Court merely clarified that European law took precedence over national mandatory rules, including the Belgian public policy provisions (para 31.).
- 237.
- 238.
See Van Hoek (2009), p. 80. This is where the Posting of Workers Directive quickly comes into play. However, the case law of the Court of Justice has made it clear that the ‘rules of precedence’ of the Posting of Workers Directive are essentially maximum provisions and that it is therefore no longer possible for national Member States to apply other public policy provisions (see below, this chapter, Sect. 3.2.3.5.3.). This only applies, of course, if the Posting of Workers Directive is applicable.
- 239.
See below, this chapter, Sect. 3.2.3.3.
- 240.
Such provisions will be sanctioned with absolute nullity.
- 241.
Whether these provisions are more favourable than those of the country of habitual employment is irrelevant here.
- 242.
However, collective labour agreements may also be considered to be of mandatory law, especially if they are declared generally binding (see CJEU 27 March 1990, Rush Portuguesa Ldª v Office national d’immigration, C-113/89, ECLI:EU:C:1990:142; CJEU 3 February 1982, Seco v EVI, C-62/81, ECLI:EU:C:1982:34; … ).
- 243.
See the Unamar case (CJEU 17 October 2013, Unamar, C-182/12, ECLI:EU:C:2013:663.) concerning the Belgian transposition rules of Council Directive 86/653/EEC of 18 December 1986 on the co-ordination of the laws of the Member States relating to self-employed commercial agents. Belgium had transposed this directive more broadly than the Bulgarian law applicable. The question was whether the broader transposition in Belgium as lex fori could take precedence over the applicable law. According to the Court, the law which has been chosen by the parties may be rejected by the court of another Member State before which the case has been brought in favour of the law of the forum, owing to the mandatory nature, in the legal order of that Member State, of the rules governing the situation of self-employed commercial agents only if the court before which the case has been brought finds, on the basis of a detailed assessment, that, in the course of that transposition, the legislature of the State of the forum held it to be crucial, in the legal order concerned, to grant the commercial agent protection going beyond that provided for by the directive, taking account in that regard of the nature and of the objective of such mandatory provisions (para 52).
- 244.
CJEU 17 October 2013, Unamar, C-182/12, ECLI:EU:C:2013:663, para 50.
- 245.
Of course, insofar as in line with EU law as evidenced by CJEU 23 November 1999, Arblade Leloup, C-369/96 and C376/96, ECLI:EU:C:1999:575, para 31 and CJEU 17 October 2013, Unamar, C-182/12, ECLI:EU:C:2013:663, para 46.
- 246.
CJEU 17 October 2013, Unamar, C-182/12, ECLI:EU:C:2013:663, para 49.
- 247.
In other words, the scheme must primarily serve the public interest. The interests of the weaker party, the employee, also being pursued does not a priori rule out the fact that the legal rules are also crucial for economic and social order (Magnus and Mankowski (2017), p. 623. See also Krebber (2020a), p. 593 and Deinert (2017), p. 186.). In the Unamar case cited above, the Court held that one of the objectives of the directive on commercial agency contracts is to eliminate restrictions on the exercise of the profession of commercial agent, to standardise conditions of competition within the Union, and to increase the certainty of commercial transactions (CJEU 9 November 2000, Ingmar GB, C-381/98, ECLI:EU:C:2000:605, para 23.).
A priori, therefore, such a provision cannot be ruled out. The Posting of Workers Directive is also considered to be an application of Article 9 and aims to ensure fair competition alongside worker protection. Although we shall see further under, this chapter, Sect. 3.2.3.3. that the way in which Directive 96/71 looks at overriding mandatory law differs from the way it is approached under the Rome I Regulation.
- 248.
It is therefore required that the substantive obligation of social law, which is penalised by criminal law, should apply to international employment contracts. In other words, any application of national criminal law provisions depends on the applicability of national substantive social law. (Henkes (1997), p. 392.).
- 249.
- 250.
The fact, for example, that only the employer and not the employee would be penalised is an indication that it is not a provision of overriding mandatory law. See for instance Rauws (1987), p. 325.
- 251.
See below, this chapter, Sect. 3.2.3.3.
- 252.
- 253.
- 254.
- 255.
Think for instance of the country of establishment of the undertaking. This was allowed under the Rome Convention because, under the then Article 7, any third State was eligible to the extent that there was a close link between the situation and the country issuing the rule. This went too far for many countries.
- 256.
After all, in the case of a prohibition, that answer is obvious. If you are not allowed to work and do so (e.g. in the case of pregnancy), this is unlawful. But does the same apply if one pays less than the minimum wage? Is this unlawful or is it rather a failure to comply with a legal obligation which contravenes the content of the contract? This would certainly be a narrow view (see Deinert (2017), p. 112 and Freitag (2009), p. 112.).
- 257.
- 258.
See also Freitag (2009), p. 111.
- 259.
Giuliano and Lagarde (1980), p. 27.
- 260.
Art. 21 of the Rome I Regulation.
- 261.
General principles of EU law can only apply if the designated law is that of an EU Member State and is of fundamental importance in any EU Member State.
- 262.
Strikwerda (2002), p. 55.
- 263.
- 264.
Contrary to the rules of precedence in the sense of Article 9 which are immediately declared applicable and exclude the application of foreign law.
- 265.
Van Overbeeke (2018).
- 266.
Gamillsheg and Franzen (2014), p. 222.
- 267.
Giuliano and Lagarde (1980), p. 38.
- 268.
For example, a non-discrimination regime will, in the abstract, justify a restriction on the invocation of public order, but this will not be the case if, in the situation in question, the person concerned has not really been discriminated.
- 269.
Gamillsheg and Franzen (2014), p. 222.
- 270.
A single difference in the way in which protection is to be granted is not enough (e.g. protection against dismissal, granting of compensation).
- 271.
- 272.
- 273.
Preis (2017), p. 174.
- 274.
- 275.
See also Mankowski (1999), p. 1857.
- 276.
In accordance with the provisions of the applicable IPR. The question of who is an employer is determined by the law that governs the validity of the contract and therefore the law applicable to the employment contract. See Article 10(1) of the Rome I Regulation.
- 277.
Incidentally, it cannot be ruled out that many of these people working for the local company will have entered into a business contract with that company.
- 278.
Eichenhofer (2020), p. 59.
- 279.
See also on this: ILO (2021), pp. 133 et seq.
- 280.
See also Eurofound (2015), p. 72.
- 281.
Article 2 of the 2002 European Framework Agreement on Telework mainly refers to teleworking where a person works at a fixed location, other than the employer’s, e.g. from home. However, it should also be mentioned in this respect that the European Framework Agreement on Telework is not limited to someone who works from another fixed place but includes any situation where someone transmits the results of his or her work by electronic means. This can be, for example, from the road, from your country house, from a customer’s office, etc.
- 282.
However, this could just as easily be done in satellite offices.
- 283.
In the context of virtual work, one might also think of the place of residence of the employee, where the recipient of the service is located, where the revenue from the activities is generated, where the computer or server is located, etc.
- 284.
Or in the case of a self-employed activity, the place where the service provider is resident.
- 285.
We should always check first whether we are dealing with an employee or a self-employed person.
- 286.
Warter (2016), p. 83.
- 287.
If an employer temporarily posts a teleworker abroad, this does, in principle, not have any impact on the applicable labour law (Article 8(2) Rome I Regulation.). It is also not excluded that Posting of Workers Directive 2018/957 is applicable, given that this instrument does not require the country of habitual employment from which the person is posted also being the country where the employer is established (see, this chapter, Sect. 3.2.3.4.2.). With regard to the question of the impact of telework on the social security situation, we refer to Chap. 4, Sect. 4.1.4.1.2.
- 288.
An element that the Court took into consideration in CJEU 12 September 2013, Schlecker v Boedeker, C-64/12, ECLI:EU:C:2013:551. However, we have already pointed out the narrow interpretation that we must give to this case (see above, this chapter, Sect. 3.2.2.2.3.3.).
- 289.
Article 13(1) of Regulation 883/2004 in conjunction with Article 14(8) of Regulation 987/2009, see below under Chap. 4, Sect. 4.1.5.2.3.1.
- 290.
In this way, an employer can influence the applicable social security legislation through the facts. A famous example is the Oresund bridge between Sweden and Denmark.
In response to the COVID-19 pandemic, a temporary and special COVID-19 regulation has been issued under which the employee can opt for the fictitious situation that the homeworking days resulting from this pandemic were performed in the State where they would have taken place in the absence of the pandemic. The purpose of this neutrality rule is to avoid a situation where someone suddenly needs to be insured in another Member State because of the public health measures in the different Member States, such as compulsory teleworking when possible. (COM (2020) 186 final.).
- 291.
Of the law of the forum.
- 292.
Regulation 1215/2012 requires that the defendant must be domiciled in a Member State (see above A). (See also Carinci and Henke (2021), pp. 149–150.). In most cases, however, such an employee will sue his employer before the court in his own country, which must then determine, on the basis of its own conflict rules, whether this court has jurisdiction.
- 293.
Article 3 of the Rome I Regulation (mainly determined by the person requesting the service).
- 294.
Article 4(1)(b) of the Rome I Regulation.
- 295.
Article 9 of the Rome I Regulation.
- 296.
Eurofound (2015), p. 107.
- 297.
Agrawal et al. (2015), pp. 219–250.
- 298.
Howe (2006), p. 1.
- 299.
Felstiner (2011), p. 143.
- 300.
Crowdworking originated in the form of clickworking in the year 2000, when NASA was looking for a way to identify and categorise craters on Mars and asked the general public for help. In itself, the world of crowdwork encompasses very different situations and various types of activity. Famous examples are Clickworker: (www.clickworker.com): Clickworker is always looking for Internet users worldwide who can, for example, create or correct texts, participate in surveys or search and categorize data for us. You can sign up as a Clickworker free of charge. You work independently, your schedule is flexible and all you need is a computer and/or mobile device with an Internet connection. You decide when and how much you want to work—on a freelance basis. Another well-known example is Amazon Mechanical Turk (MTurk). This is a crowdsourcing marketplace that makes it easier for individuals and businesses to outsource their processes and jobs to a distributed workforce who can perform these tasks virtually. This could include anything from conducting simple data validation and research to more subjective tasks like survey participation, content moderation, and more. MTurk enables companies to harness the collective intelligence, skills, and insights from a global workforce to streamline business processes, augment data collection and analysis, and accelerate machine learning development.
- 301.
Green et al. (2013).
- 302.
Eurofound (2015), p. 107.
Fiverr constitutes a prime example of this. Fiverr is the world’s largest marketplace for digital services. It enables you to browse a selection of freelancers offering services, and to place orders in just one click for a very wide range of services (e.g. graphic design, web services, translation, data input, logo creation, editing). Another example is TWAGO, Europe’s leading platform for connecting clients with contractors: Need a website built, logo designed, marketing strategy created or some data keyed? Post your project now and discover how easy it is to find the right people for the right price.
- 303.
E.g. Blablacar and Turo in the automobile sector. Taskrabit (bought by IKEA in 2017) constitutes another example of an on-demand platform for hiring people to do everything from building furniture to standing in line for you at the Apple Store.
- 304.
See De La Riva (2019), p. 77.
- 305.
Jorens (2018), p. 15. (A).
- 306.
Prassl and Risak (2016), p. 102.
- 307.
For example, literature points out that in some platforms, such as Amazon Mechanical Turk, wages are around 1.5 euros per hour (see Eurofound (2015), p. 115.) or think of Clickworker, where a person who uses the entire system, i.e. for 20–40 h per week, could earn between 200 and 750 euros per month (e.g. De Stefano and Aloisi (2018), p. 23.).
- 308.
- 309.
It is not excluded but rather unlikely that such persons would be able to rely on existing EU legal instruments. Apart from the logical condition that it must concern an employment that takes place within the EU, a common condition is that the protection only applies to employees. See e.g. Council Directive 91/383/EEC of 25 June 1991 supplementing the measures to encourage improvements in the safety and health at work of workers with a fixed-duration employment relationship or a temporary employment relationship (1991) OJ L206. According to Article 1, this Directive shall apply to employment relationships governed by a fixed-duration contract of employment concluded directly between the employer and the worker, where the end of the contract is established by objective conditions such as: reaching a specific date, completing a specific task or the occurrence of a specific event. See also Directive 97/81 on part-time work: ‘The term ‘part-time worker’ refers to an employee whose normal hours of work, calculated on a weekly basis or on average over a period of employment of up to one year, are less than the normal hours of work of a comparable full-time worker.’ Although this Directive refers to national law for the concept of part-time employee and a broad definition can be accepted, the Court of Justice (CJEU 1 March 2012, O’Brien, C-393/10, ECLI:EU:C:2012:110, para 42.) ruled that an exclusion from that protection may be allowed only if it is not arbitrary and if the relationship is, by its nature, substantially different from that between employers and their employees falling, according to national law, under the category of workers. Persons without an employment contract could therefore also fall under this directive. However, an employment relationship is opposite to self-employment, since the nature of self-employed workers is substantially different than that of workers falling in the category of employees under national law. Also, the on 16 July 2002 signed framework agreement between the European social partners ETUC (and the liaison committee Eurocadres-CEC), UNICE, UEAPME, and CEEP on telework refers to work performed in the context of an employment contract/relationship where work, which could also be performed at the employer’s premises, is carried out away from those premises on a regular basis. Although in several Member States, this notion was interpreted broadly and the code also applies to telecommuters and mobile e-workers (see implementation of the European framework agreement on telework report by the European social partners adopted by the Social Dialogue Committee on 28 June 2006, p. 15), it thus concerns work in the context of an employment contract.
For a global overview of the problems and challenges platform workers encounter with respect to their working situation and working conditions, we refer to the extensive study of Kilhoffer et al. (2019), p. 284.
- 310.
See Cherry (2019), p. 3.
- 311.
See also De Stefano (2016), p. 5.
- 312.
See e.g. Warter (2016), p. 297.
- 313.
See on this Cherry (2016), pp. 14–16.
- 314.
Cherry (2016), pp. 14–16.
- 315.
Jorens (2018), p. 23 (A).
- 316.
This does not mean, of course, that some activities could not be excluded from social law as voluntary activities under national law.
- 317.
- 318.
See also De Stefano and Aloisi (2018), p. 39.
- 319.
See Article 3(1)(b) of Directive 2008/104.
- 320.
In particular Directive 2011/83 on consumer rights.
- 321.
Cherry (2016), p. 21.
- 322.
Prassl and Risak (2016), p. 109.
- 323.
Most often, these platforms indicate that the persons concerned are self-employed workers. Most of the times, however, this is no more than a contractual façade to hide the real situation, although this has to be proved. A prime example of this can be found in the ruling of the Court of Justice (Order of the Court in CJEU 22 April 2020, Yodel Delivery Network, C-692/19, ECLI:EU:C:2020:288.) where it was asked to what extent a platform worker could be regarded as an employee for the purposes of Working Time Directive 2003/88. In the case in question, the person concerned carried out his activity on the basis of a courier service agreement which stipulates that he is ‘a self-employed independent contractor’.
- 324.
It should not come as a surprise that exactly the role of an algorithm in the rating, the rewarding, the surveillance, and the autonomy of the platform worker regarding the decision to work or not poses several challenges (see also Kilhoffer et al. (2019), pp. 56–59; who speak of the ‘black box’ in the conceptualisation), not only with respect to the question if it has an impact on the employee status of the person concerned, but also with respect to the fairness and transparency for the person. For that reason, the proposal of the Commission for a Directive on improving working conditions in platform work pays special attention to this aspect and requires platforms to provide adequate information to workers and their representatives about the categories of actions monitored, supervised, and assessed (including by clients, through ratings) and the main parameters such systems use (complementing Directive 2019/1152 of the European Parliament and of the Council of 20 June 2019 on transparent and predictable working conditions in the European Union (2019) OJ L186.) Furthermore, the proposal ensures human monitoring of the respect of the working conditions and gives the right to contest automated decisions (Arts. 6–10.). As such, it complements the General Data Protection Regulation (e.g. Art. 15 on access to personal data and Art. 22 on conditions for automated individual decision making).
- 325.
Prassl and Risak (2016), p. 110.
- 326.
Most often, platform workers accept their ‘working conditions’ by ticking a box on the platform’s website. (See Kilhoffer et al. (2019), p. 71.). The Commission’s proposal also foresees that Member States shall ensure that digital labour platforms make the following information available to them: (a) the number of persons performing platform work through the digital labour platform concerned on a regular basis and their contractual or employment status; (b) the general terms and conditions applicable to those contractual relationships, provided that those terms and conditions are unilaterally determined by the digital labour platform and apply to a large number of contractual relationships (Art. 12.). Of course, in case the platform worker would be considered as an employee, the person concerned can rely on Directive (EU) 2019/1152 on transparent and predictable working conditions in the European Union which includes rules on transparency, the right to information, probationary periods, parallel employment, minimum predictability of work, measures for on-demand contracts, protection against ‘dismissal’ (suspension, termination, and other restrictions), the right to effective legal redress, and several rights relating to working time.
- 327.
CJEU 20 December 2017, Asociación Profesional Elite Taxi, C-434/15, ECLI:EU:C:2017:981.
- 328.
CJEU 20 December 2017, Asociación Profesional Elite Taxi, C-434/15, ECLI:EU:C:2017:981, para 40.
- 329.
CJEU 20 December 2017, Asociación Profesional Elite Taxi, C-434/15, ECLI:EU:C:2017:981, para 39.
- 330.
This has important consequences for a topic that is not the subject of this study, namely competition law. It is known that in many cities, measures were taken against Uber because it did not have a licence as a taxi company or for passenger transport—the private drivers are not taxi drivers after all. The extent to which this does not close off the market and establish national protection measures that impede the free movement of establishment deserves special attention and is certainly questionable. See in this regard Van Damme (2019), pp. 117–124.
- 331.
CJEU 20 December 2017, Asociación Profesional Elite Taxi, C-434/15, ECLI:EU:C:2017:981, conclusion para 64.
- 332.
It is also interesting to note another consideration of the Advocate General in connection with control—a typical feature of an employment relationship—exercised by Uber. The Advocate General indeed points out that ‘while this control is not exercised in the context of a traditional employer-employee relationship, one should not be fooled by appearances. Indirect control such as that exercised by Uber, based on financial incentives and decentralised passenger-led ratings, with a scale effect, makes it possible to manage in a way that is just as - if not more - effective than management based on formal orders given by an employer to his employees and direct control over the carrying out of such orders.’ (para 52).
- 333.
See also COM (2016) 356 final.
- 334.
This does not imply that indirect controls are not often exercised: for example, requirements are imposed on the way in which the task or order is pursued, such as requirements regarding the tools or instruments used, subcontracting is sometimes prohibited, or training courses are imposed on those who are rated low.
- 335.
- 336.
See Risak and Prassl who, for example, advocate a functional concept of employer whereby different entities would perform employer functions. Prassl and Risak (2016), pp. 97 et seq.
- 337.
De Stefano and Aloisi point out that although the question of classification as an employee is foreign to this case, many of the arguments used can be read in such a way that they can also be used to demonstrate that they are employees. In our opinion, this should be used with great caution. (De Stefano and Aloisi (2018), p. 37.).
- 338.
See also in this context CJEU 13 January 2004, Allonby, C-256/01, ECLI:EU:C:2004:18, para 72.
- 339.
However, it is also pointed out that this is relative and that a crowdworker is often economically and organisationally (by using the app) dependent just as much as he can be ‘punished’ and even thrown off the app if, for example, he is evaluated negatively by the crowdsourcer or has completed too few assignments. (The fewer assignments, the less you are paid or the less interesting assignments you get.)
- 340.
If they even know who it is at all.
- 341.
Order of the Court in CJEU 22 April 2020, Yodel Delivery Network, C-692/19, ECLI:EU:C:2020:288.
- 342.
In the United Kingdom, for example, the London Employment Tribunal has ruled that it concerns workers (see London Employment Tribunal 28 October 2016, 2202551/2015.). In Belgium, the Labour Court of First Instance has recently decided that Deliveroo riders are self-employed (Labour Court of First Instance, 8 December 2021, 2021/014148).
- 343.
In this regard, it is observed that platform work leads to hierarchical forms of outsourcing where traditional authority structures such as setting goals, monitoring and evaluating work, providing feedback, and imposing sanctions on workers if they do not perform their tasks properly are transferred to technological tools, but at the same time, all responsibility is shielded. (See Aloisi and De Stefano (2020), p. 56 and Aloisi (2020), p. 70.).
- 344.
A good example is the question to what extent the so-called flexibility that a crowdworker has to accept or refuse a certain activity, is really without obligation, whether the electronic system sanctions him or to a large extent or incites the worker to accept the task anyway, because one is de facto excluded for subsequent tasks otherwise. Another difficulty is e.g. the question to what extent one really has the possibility to use subcontractors or substitutes to perform the service. Does the fact that there is a certain control on this possibility—both workers have to present the same professional skills—imply that it still concerns a real unrestricted possibility of substitution?
- 345.
See recently on platform work: ‘That being so, it is for the referring court, taking account of all the relevant factors relating to B and to the economic activity which he carries on, to classify his professional status in accordance with Directive 2003/88, in the light of the criteria laid down in the case-law set out in paragraphs 27 to 32 of the present order.’ (Order of the Court in CJEU 22 April 2020, Yodel Delivery Network, C-692/19, ECLI:EU:C:2020:288, para 44.) See also the previous cases CJEU 232/09, Danosa, C-232/09, ECLI:EU:C:2010:674; CJEU 14 December 1989, The Queen v Ministry of Agriculture, Fisheries and Food, ex parte Agegate Ltd., C-3/87, ECLI:EU:C:1989:650 and CJEU 9 July 2015, Balkaya, C-229/14, ECLI:EU:C:2015:455. (For a discussion of bogus-self-employment and the influence of European law, see below Chap. 5, Sect. 5.3.).
- 346.
- 347.
For an overview of platform work, see Beltran De Heredia (n.d.). Beltran de Heredia gives a good summary of the situation in different countries and shows how sometimes a person is considered an employee and sometimes a self-employed person in national jurisprudence.
- 348.
- 349.
- 350.
The latter would be deemed to exist when at least two of the following conditions—which find their origin in national case law—are met: (a) effectively determining, or setting upper limits for the level of remuneration; (b) requiring the person performing platform work to respect specific binding rules with regard to appearance, conduct towards the recipient of the service or performance of the work; (c) supervising the performance of work or verifying the quality of the results of the work including by electronic means; (d) effectively restricting the freedom, including through sanctions, to organise one’s work, in particular the discretion to choose one’s working hours or periods of absence, to accept or to refuse tasks or to use subcontractors or substitutes; (e) effectively restricting the possibility to build a client base or to perform work for any third party. (See Article 4 of COM (2021) 762 final.) Very recently, some Member States, for example Belgium, worked out a national legislation following the principles of the proposed directive.
- 351.
On the other hand, it is more difficult to determine when the activity is genuine and effective and not so marginal and ancillary to exclude the existence of an employment relationship. However, it is up to the national Member States to determine whether a person is performing marginal or ancillary work. Different thresholds (based on hours or wages) and ad hoc assessments of the characteristics of a particular relationship are used (see COM (2016) 356, 14.). This does not rule out differential treatment.
- 352.
The fact that the worker was only employed for five and a half hours a week did not, in itself, exclude the existence of a genuine employment relationship (CJEU 4 February 2010, Hava Genc V Land Berlin, C-14/09, ECLI:EU:C:2010:57, para 27; CJEU 23 March 1982, D.M. Levin v Staatssecretaris van Justitie, C-53/81, ECLI:EU:C:1982, ECLI:EU:C:1982:105, para 105; CJEU 3 June 1986, R.H. Kempf v Staatssecretaris van Justitie, C-193/85, ECLI:EU:C:1986:223; CJEU 3 July 1986, Deborah Lawrie-Blum v Land Baden-Württemberg, C-66/85, ECLI:EU:C:1986:284; CJEU 26 February 1992, Raulin v Minister of Education and Science, C-357/86, ECL:EU:C:1992:87, para 14.).
In the latter case, the person concerned had an on-call contract for 8 months and had only worked 60 h over a period of 2 weeks. However, in its assessment of the real and actual nature of the work concerned, the national court may take account of the irregular nature and limited duration of the work actually carried out under an on-call contract (para 14) but this does not preclude one from being an employee. See also CJEU 1 October 2015, O v Bio Philippe Auguste SARL, C-432/14, ECLI:EU:C:2015:643, para 25.
- 353.
See also Cherry (2019), p. 6.
- 354.
Unless one were to assume that the employment relationship of the person concerned under Article 8(4) is more closely connected with another State, which is rather a hypothetical possibility.
- 355.
Who, therefore, cannot be equated with teleworkers.
- 356.
Wisskirchen and Schwindling (2017), p. 326.
- 357.
In general, it is said that self-employed clickworkers often carry out their activities in ‘similar socio-economic’ conditions as employees (see also Berg et al. (2018), pp. 49 et seq. and the Commission proposal for a directive on improving conditions in platform work, COM (2021) 762 fin.).
- 358.
See Van Hoek (2014), p. 167.
- 359.
- 360.
The proposal for amending Article 12 of the Basic Regulation: ‘A person who pursues an activity as an employed person in a Member State on behalf of an employer which normally carries out its activities there and who is posted within the meaning of Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996 concerning the posting of workers in the framework of the provision of services or sent by that employer to another Member State to perform work on that employer’s behalf shall continue to be subject to the legislation of the first Member State, provided that the anticipated duration of such work does not exceed 24 months and that the person is not posted or sent to replace another employed or self-employed person previously posted or sent within the meaning of this Article.’ (COM (2016) 815 final.)
- 361.
See also para 7 of Directive 2014/24 which pointed out that the concept of posting needs to be clarified: ‘more uniform elements, facilitating a common interpretation, should be introduced at Union level’.
- 362.
It is therefore also clear that the Regulations apply to posting situations other than those provided for under the Directive.
- 363.
See report amendment No 24.
- 364.
Art. 12 of Regulation (EC) 883/2004.
- 365.
See also Schlachter (2002), p. 311.
- 366.
Regardless of their nationality; CJEU 9 August 1994, Raymond Vander Elst v Office des Migrations Internationales, C-43/93, ECLI:EU:C:1994:310, para 26.
- 367.
After all, it is often the case that national legislation requires that, in order for international workers to obtain a work permit, they must be employed under the same pay and working conditions as their own national workers.
- 368.
CJEU 27 March 1990, Rush Portuguesa Ldª v Office national d’immigration, C-113/89, ECLI:EU:C:1990:142, para 18; CJEU 3 February 1982, Seco v EVI, C-62/81, ECLI:EU:C:1982:34; para 14; CJEU 28 March 1996, Guiot, C-272/94, ECLI:EU:C:1996:147, para 12 and CJEU 23 November 1999, Arblade Leloup, C-369/96 and C376/96, ECLI:EU:C:1999:575, para 41.
- 369.
For an overview of these national reactions, see Evju and Novitz (2014), pp. 27 et seq.
- 370.
See above, this chapter, Sect. 3.2.2.2.3.4.
- 371.
See COM (2003) 458, 5.
- 372.
Recital 6 of the Preamble of Directive 96/71.
- 373.
See Directive 96/71.
- 374.
While the directive as such introduces some minimum protection norms, it leaves regulatory margin to the Member States (e.g. whether or not to introduce provisions on the minimum conditions, the content of the mandatory rules, who is a worker, the public policy provisions).
- 375.
A first proposal was launched by the Commission in 1991 (COM (91) 230 final). After this proposal failed, the Commission launched a new proposal in 1993 (COM (93) 225 final) which, after many new amendments, would eventually lead to a compromise proposal in February 1996 under the Italian Presidency. For an overview of the positions, see among others Evju and Novitz (2014), pp. 27 et seq.; Houwerzijl (2005), pp. 83 et seq. and Davies (1997), p. 571.
- 376.
The first proposal still suggested a threshold of 3 months (see under, this chapter, Sect. 3.2.3.4.4.2.). An open list should also make it possible—in particular for countries known as net importers of labour—to protect their own social security system as much as possible. As far as collective agreements are concerned, a compromise was sought for those countries that did not have a system of universally binding agreements, on the basis of which ultimately only compliance with obligatory collective agreements from the construction sector in the host State would be made obligatory.
- 377.
In itself a special basis because this article dealt with access to self-employed activities, which shows that the emphasis is on the service provider as the employer of the posted workers, rather than on the latter themselves. (On the discussions concerning the basis and alternatives proposed at the time, see Houwerzijl (2005), pp. 101–113. Even with the revision of this directive by Directive 2018/957, this basis continued to be derived from the free movement of services, thus further demonstrating the market bias within the directive (see Carter (2018), p. 54.).
- 378.
The choice of a legal basis also has an impact on the voting procedure. The choice of the internal market also had the advantage that unanimity was not required.
- 379.
- 380.
Directive 96/71, para 5. See also Directive (EU) 2018/957 of The European Parliament and of the Council of 28 June 2018 amending Directive 96/71/EC concerning the posting of workers in the framework of the provision of services, paras 1 and 4.
- 381.
See the conclusion of Advocate General in CJEU 11 December 2007, The International Transport Workers’ Federation and The Finnish Seamen’s Union, C-438/05, ECLI:EU:C:2007:292, paras 67–69.
In the specific context of posted workers, the Court held that the provisions on freedom of movement do not prevent the Member States from applying their national rules on working conditions and minimum wage to posted workers who are temporarily employed in their territory. Member States may apply their national standards for worker protection to posted workers to the extent necessary and proportionate to provide an equivalent level of worker protection to posted workers and workers from the host State. Nonetheless, this trend in case law has its origins in concerns about equal treatment and social cohesion between workers. The purpose of the case law in the field of posted workers is not to allow national working conditions and wages to be imposed on undertakings established in another Member State—although that may be the effect to some extent—but to ensure that workers temporarily posted to a Member State enjoy a level of worker protection comparable to that of their colleagues in the host Member State, with whom they often have to work side by side.
- 382.
Becoming some of the most debated case law: see e.g. Barnard (2008), pp. 262 et seq.; Davies (2008), pp. 126–148; Shuibhne (2010), pp. 683–701; Syrpis and Novitz (2008), pp. 411–426; Feenstra (2017), pp. 309–343; Bücker and Warneck (2011); Deakin (2008), pp. 581–609 and Malmberg and Sigeman (2008), pp. 1115–1146.
- 383.
See Rasnaca (2018), p. 142. Rasnača points out that the Member States themselves did not really insist on amending the directive (whereas the old Member States did not show much interest in renegotiating the directive, the new Member States were rather positive).
- 384.
It was then Commission President Barroso who, in a speech before the European Parliament, announced, with a view to his re-election, the adoption of two new instruments: ‘I have clearly stated my attachment to the respect of fundamental social rights and to the principle of free movement of workers. The interpretation and the implementation of the posted workers Directive falls short in both respects. That is why I commit to propose as soon as possible a Regulation to resolve the problems that have arisen. This Regulation will be co-decided by the EP and the Council. A Regulation has the advantage of giving much more legal certainty than the revision of the Directive itself, which would still leave too much room for diverging transposition, and take longer to produce real effects on the ground. (See Barosso (2009), p. 6.). Shortly before that, the European Parliament had adopted a resolution calling for a legislative initiative (European Parliament resolution of 22 October 2008 on challenges to collective agreements in the EU (2008/2085(INI)), para 26.).
- 385.
COM (2012) 130 final. According to this proposal, the right to take collective action and the freedom to provide services as well as the freedom of establishment are of equal value (see Article 2). In the exercise of the freedom of establishment and the freedom to provide services enshrined in the Treaty, the fundamental right to take collective action, including the right or freedom to strike, shall be respected, and conversely, in the exercise of the fundamental right to take collective action, including the right or freedom to strike, these economic freedoms shall be respected. An informal dispute resolution system was also introduced.
- 386.
See Malmberg and Johansson (2012), p. 7.
- 387.
Directive 2014/67/EU of the European Parliament and of the Council of 15 May 2014 on the enforcement of Directive 96/71/EC concerning the posting of workers in the framework of the provision of services and amending Regulation (EU) No 1024/2012 on administrative cooperation through the Internal Market Information System (‘the IMI Regulation’) (2014) OJ L 159, 11–13.
- 388.
The legal basis is therefore also based on the free movement of services (Articles 53(1) and 62 TFEU.).
- 389.
Although Directive 96/71 also provided for certain obligations to cooperate, it soon became apparent that these were often empty words (Article 4 of Directive 96/71).
- 390.
See European Commission (2014a), p. 7.
In the mission letter from President Juncker to Marianne Thyssen, EU Commissioner for Employment, Social Affairs, Skills and Labour Mobility, we read that one of the objectives is ‘promoting free movement of workers, working closely with national authorities to ensure that existing rules are well understood and implemented, as well as to fight possible abuses or fraudulent claims. This work will include making sure that the Posting of Workers Directive is strictly implemented and initiating a targeted review of the Directive to prevent risks of social dumping’. (European Commission (2014b), p. 5.).
- 391.
Letter of Austria, Belgium, France, Germany, Luxembourg, the Netherlands, and Sweden.
- 392.
Bulgaria, Czech Republic, Estonia, Hungary, Lithuania, Poland, Romania, and Slovakia. This letter states, for instance, that ‘there is no evidence that potential weaknesses could lay in the basic rules established in Directive 96/71 but in the arrangements across the EU for their enforcement’.
- 393.
Cited in Van Overbeeke (2016), p. 11.
- 394.
See extensively on this Rasnaca (2018), pp. 131–153.
- 395.
COM (2016) 128 final.
- 396.
Apart from arguments concerning subsidiarity and proportionality (Bottero (2020), p. 249.) other arguments were: the fact that differences in the cost of living between Member States were not taken into account, the fact that the additional costs incurred by posted workers were not taken into account, the negative effects on the economy in some Member States, and legal uncertainty (see Rasnaca (2018), p. 146 and Fromage and Kreilinger (2017), pp. 125 et seq.).
- 397.
European Commission (2016). In comparison with the initial yellow card, the Commission would subsequently enter into close consultation with each Member State that had reservations.
- 398.
Even threats were not out of the question. For example, France threatened that if the directive was not adapted to higher contributions, it would simply not apply Directive 96/71. EURACTIV and AFP (2016).
- 399.
- 400.
See also Van Hoek (2019), p. 53.
- 401.
For example, it will often be required to have a sufficiently close link with the territory of that State. It cannot be ruled out that not every employment meets this condition. Accordingly, the Belgian Court of Cassation ruled that such provisions apply only if the persons concerned habitually carry out their work in Belgium. (Court of Cassation of 4 December 1989, J.T.T., 1990, 370.) Temporary posting does not meet these requirements.
- 402.
See Art. 3(7) of Directive 96/71.
- 403.
See also Defossez (2014), p. 106 (A).
- 404.
When Directive 96/71 was amended by Directive 2018/957, this did seem to be the intention of the Commission in its original proposal. A strongly criticised Article 2a would include the following in particular: ‘When the anticipated or the effective duration of posting exceeds twenty-four months, the Member State to whose territory a worker is posted shall be deemed to be the country in which his or her work is habitually carried out.’ This demonstrates the Commission’s desire to propose a new conflict rule on the applicable legislation for long-term posting (see Van Den Eeckhout (2014), pp. 3–8.). What is special, then, as this author points out, is that a directive on posting actually establishes a conflict rule for a situation that has been excluded from the scope of this directive. However, this idea has been retained for a while (see Article 5(5) of Directive 96/71.). However this idea survived to a certain extent a little bit in the final text: see further under, this chapter, Sect. 3.2.3.4.4.1.
- 405.
Art. 3 of Directive 96/71.
- 406.
In particular CJEU 16 December 2010, Heiko Koelzsch v État du Grand Duchy of Luxemburg, C-29/10, ECLI:EU:C:2010:789.
- 407.
In most cases, it concerns the country of habitual employment. The place of establishment of the employer is only rarely applicable.
- 408.
What clearly emerges as a criterion under Enforcement Directive 2014/67, see under, this chapter, Sect. 3.2.3.4.4.
- 409.
Art. 3(1) of Directive 96/71. It is striking that it is not always clear to whom this obligation applies. Does it concern the country of temporary employment? The Directive only stipulates that the Member State of temporary employment must guarantee the said terms and conditions of employment. This does not mean that this could not be done by applying Article 3(7) of the Directive, which states that the application of these minimum working conditions shall not prevent the application of terms and conditions of employment which are more favourable to workers. This rather seems to indicate that the other country can also guarantee these minimum working conditions. In case law too, there is a lack of clarity. In Commission v Luxembourg (CJEU 19 June 2008, Commission v Luxembourg, C-319/06, ECLI:EU:C:2008:350.), the Court discussed the possibility (in particular, the host Member State may assert its rules and is allowed to impose them), while in a previous case (CJEU 18 July 2007, Commission v Germany, C-490/04, ECLI:EU:C:2007:430.), the Court found that the Directive sets out a list of national rules which a Member State must apply to foreign posted workers. On the other hand, the idea of a guarantee seems to suggest that these minimum provisions should apply and national conditions cannot exclude their application.
- 410.
See CJEU 27 March 1990, Rush Portuguesa Ldª v Office national d’immigration, C-113/89, ECLI:EU:C:1990:142.
- 411.
See also COM (2003) 458 final, 7.
- 412.
According to recital 34 of the Preamble to the Rome I Regulation, this concerns overriding mandatory law.
- 413.
See CJEU 18 December 2007, Laval un Partneri, C-341/05, ECLI:EU:C:2007:809, para 68. There is therefore no obligation to introduce a minimum scheme (Fallon (2008), p. 802.). Member States are thus free to choose a system that is not expressly mentioned in this directive, provided that it does not impede the provision of services between Member States, albeit in relative terms because they have to bear the consequences. A collective labour agreement that is not established in accordance with Article 3(8) cannot be considered as minimum pay in the sense of Article 3(1) of the Directive, which the Member States may impose to foreign service providers (CJEU 3 April 2008, Rüffert, C-346/06, ECLI:EU:C:2008:189, para 30 and CJEU 18 December 2007, Laval un Partneri, C-341/05, ECLI:EU:C:2007:809, para 71.). Since, in the present case, collective labour agreements have a high coverage rate in Sweden—they apply to more than 90% of employees in the private sector—and the mechanisms and procedures available to the social partners adequately guarantee compliance with the minimum rules laid down in the CLAs, the Swedish legislature did not, at the time, consider it necessary to extend the scope of those agreements by declaring them generally binding. National law was meant to establish a minimum wage—because negotiations cannot lead to a lower amount—but because it is negotiated in a different way than provided for in the directive, it is not a minimum wage and Sweden could not guarantee a minimum wage to posted workers. This is why the national rules were subsequently amended.
- 414.
- 415.
Van Hoek (2009), p. 80.
- 416.
The new directive, which imposes additional labour law provisions, makes this question even more pertinent.
- 417.
See also Piir (2019), p. 111.
- 418.
Article 3(10) of Directive 96/71.
- 419.
See below under, this chapter, Sect. 3.2.3.5.3.
- 420.
Article 3(7) of Directive 96/71. For Defossez, this also points to the broad nature of the hard core provisions (Defossez (2015), p. 492.).
- 421.
See CJEU 8 December 2020, Hungary v Parliament and Council, C-620/18, ECLI:EU:C:2020:1001, para 179 (The Commission had attached to the proposal for the Rome I Regulation a list of the special conflict-of-law rules laid down in other Union law provisions, including Directive 96/71, para 80) and CJEU 13 January 2021, Commission v Slovenia (MiFID II), C-628-18, ECLI:EU:C:2021:1, para 133.
- 422.
Art. 23 of the Rome I Regulation.
- 423.
- 424.
Pursuant to Art. 1(4) of Directive 96/71 undertakings established in a non-Member State must not be given more favourable treatment than undertakings established in a Member State. Member States must, within the framework of their own powers, ensure that the nucleus provisions are also applied to these third country nationals posted to their country (on the basis of an international treaty, the EEA agreement, or on the basis of national law).
- 425.
Ho-Dac (2016), p. 105.
- 426.
Recital 11 of Directive 2014/67.
- 427.
Art. 5 of Directive (EU) 2018/957.
- 428.
- 429.
See Advocate General Van Themaat in CJEU 3 February 1982, Seco v EVI, C-62/81, ECLI:EU:C:1982:34, para 244.
- 430.
Compare, moreover, with regard to the free movement of persons: CJEU 7 July 2005, Commission v Austria, C-147/03, ECLI:EU:C:2005:427, para 63.
- 431.
See above under Chap. 2, Sect. 2.1.2.2.3.1.
- 432.
See e.g. CJEU 17 December 1981, Criminal proceedings against Alfred John Webb, C-279/80, ECLI:EU:C:1981:314.
- 433.
CJEU 17 December 1981, Criminal proceedings against Alfred John Webb, C-279/80, ECLI:EU:C:1981:314; CJEU 3 February 1982, Seco v EVI, C-62/81, ECLI:EU:C:1982:34, para 244; CJEU 27 March 1990, Rush Portuguesa Ldª v Office national d’immigration, C-113/89, ECLI:EU:C:1990:142; CJEU 28 March 1996, Guiot, C-272/94, ECLI:EU:C:1996:147; CJEU 23 November 1999, Arblade Leloup, C-369/96 and C376/96, ECLI:EU:C:1999:575; CJEU 25 October 2001, Finalarte and others, C-49/98, ECLI:EU:C:2001:564, para 40; CJEU 25 October 2001, Portugaia Construções, C-70/98, ECLI:EU:C:2001:564, para 27; CJEU 19 June 2008, Commission v Luxembourg, C-319/06, ECLI:EU:C:2008:350; CJEU 7 October 2010, Dos Santos Palhota and others, C-515/08, ECLI:EU:C:2010:589, para 47 and CJEU 3 December 2014, De Clercq and others, C-315/13, ECLI:EU:C:2014:2408, para 65.
- 434.
CJEU 23 November 1999, Arblade Leloup, C-369/96 and C376/96, ECLI:EU:C:1999:575.
- 435.
CJEU 12 October 2004, Wolff and Müller, C-60/03, ECLI:EU:C:2004:610, paras 35–36 and 41.
- 436.
CJEU 18 December 2007, Laval un Partneri, C-341/05, ECLI:EU:C:2007:809, para 103.
- 437.
See in that sense CJEU 3 April 2008, Rüffert, C-346/06, ECLI:EU:C:2008:189, para 42 and CJEU 16 May 2006, Watts, C-372/04, ECLI:EU:C:2006:325, para 103.
- 438.
CJEU 19 December 2012, Commission v Belgium, C-557/10, ECLI:EU:C:2012:814, para 45.
- 439.
CJEU 26 April 1988, Bond van Adverteerders e.a. v Staat der Nederlanden, C-352/88, ECLI:EU:C:1988:196, para 34; CJEU 25 July 1991, Collectieve Antennevoorziening Gouda, C-288/89, ECLI:EU:C:1991:323, para 29; CJEU 3 July 1991, Department of Health and Social Security v Christopher Stewart Barr and Montrose Holdings Ltd., C-355/89, ECLI:EU:C:1991:287, paras 35–36 and CJEU 5 June 1997, Syndemos ton en Elladi Touristikon kai Taxidiotikon Grafeion v Ypourgos Ergasias, C-389/95, ECLI:EU:C:1997:282. The enforcement of labour peace as a means of putting an end to a collective labour dispute and thus preventing an economic sector from being adversely affected is not a reason of general interest. In the case in question, the obligation was imposed that a tourist guide should be bound by an employment contract. CJEU 16 January 2003, Commission v Italy, C-388/01, ECLI:EU:C:2003:30 paras 18–19 and CJEU 16 December 1992, Commission v Belgium, C-211/91, ECLI:EU:C:1992:526, paras 9–11.
- 440.
Jorens (1997), p. 354.
- 441.
CJEU 4 December 1986, Commission v Germany, C-205/84, ECLI:EU:C:1986:463.
- 442.
Kort (2002), p. 1251.
- 443.
CJEU 25 October 2001, Finalarte and others, C-49/98, ECLI:EU:C:2001:564, para 40 and CJEU 25 October 2001, Portugaia Construções, C-70/98, ECLI:EU:C:2001:564, para 27. (At that time, the Directive had not yet entered into force.)
- 444.
See also the Preamble to Directive 96/71, para 5 and CJEU 12 October 2004, Wolff and Müller, C-60/03, ECLI:EU:C:2004:610, paras 38 and 41 et seq.
- 445.
CJEU 18 December 2007, Laval un Partneri, C-341/05, ECLI:EU:C:2007:809, para 103.
- 446.
In this regard, see also Briers and Jorens (1993), pp. 269–270.
- 447.
See CJEU 25 October 2001, Finalarte and others, C-49/98, ECLI:EU:C:2001:564, para 50.
- 448.
See in that sense CJEU 19 June 2008, Commission v Luxembourg, C-319/06, ECLI:EU:C:2008:350, para 42.
- 449.
CJEU 28 March 1996, Guiot, C-272/94, ECLI:EU:C:1996:147; CJEU 23 November 1999, Arblade Leloup, C-369/96 and C376/96, ECLI:EU:C:1999:575 and CJEU 11 March 2004, Commission v France, C-496/01, ECLI:EU:C:2004:137.
- 450.
See Houwerzijl (2005), pp. 214–215.
- 451.
CJEU 28 March 1996, Guiot, C-272/94, ECLI:EU:C:1996:147, para 20.
- 452.
In CJEU 28 March 1996, Guiot, C-272/94, ECLI:EU:C:1996:147, the person concerned had to pay a premium of 4% in Luxembourg (posting country) while in Belgium (host country) it was 9.12% for the loyalty stamps and 2.1% for the bad-weather stamps (paras 4 and 7).
- 453.
- 454.
It is also in this case that the word social dumping is explicitly mentioned (see CJEU 18 December 2007, Laval un Partneri, C-341/05, ECLI:EU:C:2007:809, para 103.). In previous cases (e.g. CJEU 25 October 2001, Finalarte and others, C-49/98, ECLI:EU:C:2001:564, para 38.) the Court refers to a low-wage policy. Although this is also relative: Z. Rasnaca points out, for instance, that if we look at the wage requested by the Swedish trade unions compared with the wage Laval expressed readiness to pay the difference is not striking (see Rasnaca (2018), p. 134.). Indeed, the difference between €10 and €12 is fairly limited, especially if we keep in mind that these supplements are costs that local employers do not have.
- 455.
- 456.
See CJEU 19 June 2008, Commission v Luxembourg, C-319/06, ECLI:EU:C:2008:350, para 42.
- 457.
See CJEU 23 November 1999, Arblade Leloup, C-369/96 and C376/96, ECLI:EU:C:1999:575, para 31: ‘The fact that national rules are categorised as public-order legislation does not mean that they are exempt from compliance with the provisions of the Treaty; if it did, the primacy and uniform application of Community law would be undermined. The considerations underlying such national legislation can be taken into account by Community law only in terms of the exceptions to Community freedoms expressly provided for by the Treaty and, where appropriate, on the ground that they constitute overriding reasons relating to the public interest.’
- 458.
CJEU 3 April 2008, Rüffert, C-346/06, ECLI:EU:C:2008:189, para 36 and CJEU 18 December 2007, Laval un Partneri, C-341/05, ECLI:EU:C:2007:8, para 73.
- 459.
CJEU 3 April 2008, Rüffert, C-346/06, ECLI:EU:C:2008:189, para 43.
- 460.
See e.g. CJEU 18 December 2007, Laval un Partneri, C-341/05, ECLI:EU:C:2007:8, para 80 and CJEU 3 April 2008, Rüffert, C-346/06, ECLI:EU:C:2008:189, para 33.
- 461.
CJEU 7 November 2013, Isbir v DB Services Gmbh, C-522/12, ELCI:EU:C:2013:711, para 37 and CJEU 12 February 2015, Sähköalojen ammattiliitto, C-396/13, ECLI:EU:C:2015:86, para 34.
- 462.
See in that sense also Deinert (2017), p. 218.
- 463.
Comprising the complete labour law of the host country minus, on the one hand, the procedures, formalities, and conditions regarding the conclusion and termination of the employment contract, including non-competition clauses and, on the other hand, the supplementary pension schemes. There is, however, an important caveat: these must be schemes that are provided for under the Directive (i.e. not collective agreements at company level).
- 464.
It is remarkable that the new Article 1 now states the following: ‘Member States shall ensure, irrespective of which law applies to the employment relationship, that undertakings as referred to in Article 1(1) guarantee, on the basis of equality of treatment, workers who are posted to their territory the terms and conditions of employment covering the following matters’. It is unclear what this equal treatment means since posted workers are not covered by the free movement of workers.
- 465.
See CJEU 8 December 2020, Hungary v Parliament and Council, C-620/18, ECLI:EU:C:2020:1001, paras 126–129 and CJEU 8 December 2020, Republic of Poland V European Parliament and Council of the European Union, C-626/18, ECLI:EU:C:2020:1000, para 90.
- 466.
See CJEU 8 December 2020, Hungary v Parliament and Council, C-620/18, ECLI:EU:C:2020:1001, para 156 and CJEU 8 December 2020, Republic of Poland V European Parliament and Council of the European Union, C-626/18, ECLI:EU:C:2020:1000, para 125.
- 467.
- 468.
Fallon (2008), p. 805.
- 469.
It is true that the EP had suggested using Article 153(1)(a) and (b) in conjunction with Article 153(2) TFEU as an additional basis. (See Morin-Chartier and Jongerius (2017).)
- 470.
In recital 3, the preamble also refers, for example, to Article 3 TEU which states that the Union shall promote social justice and protection and to Article 9 TFEU which states that the Union shall take into account social objectives in defining and implementing its policies and activities.
- 471.
Article 1 of the Directive.
- 472.
Article 1a of the Directive.
- 473.
See CJEU 8 December 2020, Hungary v Parliament and Council, C-620/18, ECLI:EU:C:2020:1001 and CJEU 8 December 2020, Republic of Poland V European Parliament and Council of the European Union, C-626/18, ECLI:EU:C:2020:1000, para 51. Article 153 TFEU—which deals with the social objectives—cannot serve as a legal basis for the Posting of Workers Directive. After all, this treaty provision can only be used for measures that encourage cooperation between the Member States in the social sphere or that harmonise the laws of the Member States. The Posting of Workers Directive currently does not do the latter at all. (See CJEU 8 December 2020, Hungary v Parliament and Council, C-620/18, ECLI:EU:C:2020:1001, paras 65–70.)
- 474.
CJEU 21 December 2016, Ikralis v Ypourgos Ergasias, Koinonikis Asfalisis kai Koinonikis Allilengyis, C-201/15, ECLI:EU:C:2016:972, para 77.
- 475.
The Court makes it clear that, in the exercise of the powers conferred on it, the European Union legislature enjoys broad discretion in areas in which it is called upon to make political, economic, or social choices and in which it must carry out complex assessments and considerations. It is not for the European Union judicature to assess whether a measure adopted in such an area was the only or the best possible measure. Only its manifest unsuitability for attaining the objective pursued by the competent institutions can affect the lawfulness of that measure (see CJEU 8 December 2020, Hungary v Parliament and Council, C-620/18, ECLI:EU:C:2020:1001, para 112 and CJEU 8 December 2020, Republic of Poland V European Parliament and Council of the European Union, C-626/18, ECLI:EU:C:2020:1000, para 95.
- 476.
In the case of temporary workers, this equality is actually complete.
- 477.
See Art. 2(2) of Directive 96/71 and see also Art. 4(5) of Directive 2014/67.
- 478.
The social security regulations further specify that a posted worker is someone who pursues an activity as an employed person in a Member State on behalf of an employer who normally carries out its activities there and who is posted by that employer to another Member State to perform work on that employer’s behalf. The activities must therefore be carried out in the country of establishment of the employer (Art. 2(1) of Directive 96/71.).
- 479.
Art. 4(3)(d) of Directive 2014/67.
- 480.
- 481.
We increasingly come across situations where a manager or team leader and several unqualified workers from the new Member States are posing as an undertaking under civil law, without the necessary conditions for setting up such a company being met. Another example is an undertaking set up in a Member State together with shareholders from Member State B who hold a single share, post themselves as active partners (i.e. a partner carrying out an activity in a company with a view to realising a return on the capital that is partly his own) to Member State A, and are in the possession of a posting form.
The key question is therefore whether these foreign workers can be regarded as partners or whether an employer-employee relationship is more likely to be established with the manager/team leader in question.
- 482.
For example, a company in Member State A invoices to a client in A via an intermediate invoicing firm, but the activities are carried out by companies in Member State B. During checks, it is found that the intermediate invoicing company only pays the company from State B a small fraction of what it receives from the company from State A. The problem is that the intermediate companies do not have any employees. The more companies involved, the more difficult it becomes for inspectorates to take action.
- 483.
See, for instance, Art. 2 of the Decision on the social security status of self-employed workers in Belgium.
- 484.
Art. 2(2) of Directive 96/71.
- 485.
There is therefore no question of posting fraud. This would only apply if the person concerned could not be self-employed under the legislation of the posting country. But should that even be determined by the posting country?
- 486.
Art. 4(3) and (5) of Directive 2014/67. Consequently, civil servants also fall within the scope of this Directive and therefore this Directive also applies to the public sector, regardless of whether the personnel are employed on the basis of an appointment or an employment contract (see also Van Hoek (2000), p. 121.). Only persons falling under the exception of public authority would not be covered (see CJEU 17 December 1980, Commission of the European Communities v Kingdom of Belgium, C-149/79, ECLI:EU:C:1980:297.).
- 487.
Art. 4 of Directive (EU) 2018/957.
- 488.
Article 1(1).
- 489.
Article 1(4).
- 490.
The PWD directives are also applicable to the EEA and Switzerland.
- 491.
See recital 20 of the Preamble of Directive 96/71.
- 492.
- 493.
See also further for discussion on the question whether ‘from which’ in the provision also applies to the posting situation. As such, this does not exclude the possibility of being posted to the country of establishment of the employer as it is very exceptional that this country’s law will also be the applicable legislation.
- 494.
CJEU 18 September 2014, Bundesdruckerei, C-549/13, ECLI:EU:C:2014:2235, paras 25–26 and 33–34.
In any event, in so far as the national legislation at issue in the main proceedings also applies to a situation, such as that at issue in the main proceedings, in which employees perform a public contract in a Member State other than that of the contracting authority, where the minimum rates of pay are lower, that legislation is disproportionate. That legislation goes beyond what is necessary to achieve the objective of protecting workers, in so far as, in such a situation, it lays down a fixed minimum wage which corresponds to the remuneration required to ensure that workers from the Member State of the contracting entity receive an adequate wage, having regard to the cost of living in that Member State, but which is disproportionate to the cost of living in the Member State in which the services are to be provided for the performance of the public contract in question, and thus deprives subcontractors established in that Member State of the possibility of deriving a competitive advantage from the existing wage differentials.
- 495.
- 496.
This may be especially common in activities where technological means of communication can be used.
- 497.
Iossa (2021), p. 20.
- 498.
Saydé (2014), p. 314.
- 499.
CJEU 18 September 2014, Bundesdruckerei GmbH v Dortmund, C-549/13, ECLI:EU:C:2014:2235, para 34.
- 500.
- 501.
See Article 4(2) of Directive 2014/67, see below under Chap. 4, section “Third Condition: Connection Between the Posting Undertaking and the Place Where It Is Established: No Letterbox Company”.
- 502.
Houwerzijl (2005), p. 126. As has been pointed out, the Mazzoleni case involved a situation of part-time work, but the question of the application of the directive to this situation remained unanswered. (CJEU 15 March 2001, Mazzoleni and ISA, C-165/98, ECLI:EU:C:2001:162.)
- 503.
The situation would be different if simultaneous employment were seen as successive—and therefore always between two Member States—rather than simultaneous employment in different Member States. This certainly would not solve all problems. For example, can a haulier who transports goods from State A to State B on a weekly basis but has to pass through State C for this purpose be said to be posted first to State C and then from State B to State C? Where is the habitual place of employment of the worker concerned? Where is the place of establishment of the employer? (This last question is interesting from the perspective of social security regulations. See below Chap. 4, Sect. 4.1.5.2.). It is self-evident that, for someone working in aviation, this is inconceivable.
- 504.
See CJEU 19 December 2019, Dobersberger, C-16/18, ECLI:EU:C:2019:1110.
- 505.
The facts in CJEU 1 December 2020, Federatie Nederlandse Vakbeweging v Van den Bosch Transporten BV e.a., C-815/18, ECLI:EU:C:2020:976.
- 506.
Social security regulations apply one of the connection rules, to be distinguished from the posting provisions, to simultaneous employment. It should be noted, however, that, as a consequence of the fact that the concept of posted workers has been interpreted very broadly in national law, the posting provisions are often applicable to situations of simultaneous employment (on the Belgian situation, see for example Jorens (2009b), p. 13. (C)).
- 507.
See COM (2005) 650 final. Here, too, there was a willingness to tie in more closely with case law, particularly in the context of the Brussels Convention, where this connection was already known in the context of trade representatives. See in particular CJEU 9 January 1977, Rutten v Cross Medical, C-383/95, ECLI:EU:C:1997:7, para 23 and CJEU 13 July 1993, Mulox IBC Ltd v Hendrick Geels, C-125/92, ECLI:EU:C:1993: 306, para 26.
- 508.
Art. 2(1) of Directive 96/71.
- 509.
See in particular Art. 4(3)(c) of Directive 2014/67.
- 510.
See CJEU 1 December 2020, Federatie Nederlandse Vakbeweging v Van den Bosch Transporten BV e.a., C-815/18, ECLI:EU:C:2020:976 and CJEU 19 December 2019, Dobersberger, C-16/18, ECLI:EU:C:2019:1110.
- 511.
See below under Sect. 3.2.3.4.4.2.
- 512.
Art. 2 of Directive 96/71.
- 513.
Social security Regulations 883/2004 and 987/2009 expressly mention the person who pursues an activity as an employed person in a Member State on behalf of an employer which normally carries out its activities there and who is posted by that employer to another Member State to perform work on that employer’s behalf (Art. 12 of Regulation 883/2004.). But self-employed workers can also post themselves under social security law.
- 514.
The Posting of Workers Directive does not exclude the public sector from its scope. As such, the public sector can also be included in the concept of undertaking. For example, the Court of Justice has defined the concept of ‘undertaking’ (within the meaning of Transfers of Undertakings Directive 2001/23) as any long-term organised economic entity, regardless of its legal form and the way in which it is financed. (See CJEU 6 September 2011, Scattolon, C-108/10, ECLI:EU:C:2011:542, para 42.) (A problem arises only if an undertaking exercises activities which fall within the scope of public authority.) However, another question is to what extent civil servants can be considered employees (see above, this chapter, Sect. 3.2.3.4.1.).
- 515.
Nevertheless, this requirement has evolved considerably. The European Commission’s proposal for Directive 96/71 (COM (1991) 230.) states explicitly that during the performance of a work or service contract a worker may be posted to the territory of a Member State on behalf of or under the direction of that undertaking. Furthermore, the explanatory memorandum states that this concerns CJEU 27 March 1990, Rush Portuguesa Ldª v Office national d’immigration, C-113/89, ECLI:EU:C:1990:142, para 14. In later texts, this is seen in a broader sense, for example in the report by the Committee on Social Affairs, Employment and the Working Environment (A3-0022/93), an amendment is tabled (Amendment 11) which states that this applies ‘during the course of its activities or their implementation…’. The final Common Position states that the Council identified the addition that the posting must be under a contract as one of the main amendments. (Common Position (EC) No 32/96 adopted by the Council on 3 June 1996 with a view to adopting Directive 96/…/EC of the European Parliament and of the Council concerning the posting of workers in the framework of the provision of services OJ C220.) The Council specified that the posting must take place under a contract between the undertaking of origin and the recipient of the service who is operating in the host Member State. This specification would be aimed at narrowing the scope and keeping it focused on the construction case (Van Overbeeke (2018), p. 542.).
- 516.
See CJEU 12 February 2015, Sähköalojen ammattiliitto, C-396/13, ECLI:EU:C:2015:86, para 13; CJEU 3 April 2008, Rüffert, C-346/06, ECLI:EU:C:2008:189, para 30 and CJEU 18 December 2007, Laval un Partneri, C-341/05, ECLI:EU:C:2007:809, para 19.
- 517.
CJEU 19 December 2019, Dobersberger, C-16/18, ECLI:EU:C:2019:1110.
- 518.
An Austrian undertaking had awarded the contract for the provision of services to another undertaking established in Austria, which in turn had subcontracted it through a chain of subcontractors to an undertaking established in Hungary which employs staff from a subcontractor for that purpose.
- 519.
Conclusion of Advocate General Szpunar in CJEU 19 December 2019, Dobersberger, C-16/18, ECLI:EU:C:2019:1110, para 75.
- 520.
See the conclusion of Advocate General Bobek in CJEU 1 December 2020, Federatie Nederlandse Vakbeweging v Van den Bosch Transporten BV e.a., C-815/18, ECLI:EU:C:2020:976, para 110.
- 521.
See also Rebhahn and Krebber (2020), p. 895.
- 522.
CJEU 10 February 2011, Vicoplus e.a., C-307/09, ECLI:EU:C:2011:64, para 31.
- 523.
Conclusion of Advocate General Wahl in CJEU 14 November 2018, Danieli & C. Officine Meccaniche and Others, C-18/17, ECLI:EU:C:2018:904, para 54.
- 524.
See the CJEU 10 February 2011, Vicoplus e.a., C-307/09, ECLI:EU:C:2011:64, paras 43–47. See also CJEU 14 November 2018, Danieli & C. Officine Meccaniche and Others, C-18/17, ECLI:EU:C:2018: 904, paras 30–32.
- 525.
See CJEU 18 June 2015, Martin Meat, C-586/13, ECLI:EU:C:2015:405, paras 35 and 38. It is irrelevant that the service provider has only one customer in the host Member State and that he rents the premises in which the service is provided and the machinery.
- 526.
CJEU 18 June 2015, Martin Meat, C-586/13, ECLI:EU:C:2015:405, para 40.
- 527.
Art. 5(1) of Directive 2008/104 by which is meant (Art. 3 (f)) working time, overtime, breaks, rest periods, night work, holidays and public holidays; and remuneration. The rules on the protection of pregnant women and nursing mothers and of children and young people must also be respected, as must equal treatment for men and women and measures to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age, or sexual orientation. There is therefore a great similarity between the hard core provisions of Directive 96/71 and the basic working and employment conditions under the Directive on Temporary Agency Work (an exception applies to the conditions for the posting of workers, in particular by temporary employment agencies (Art. 3(1)(d)).
- 528.
Under the old directive—this one pre-dates Directive 2008/104—the same thing was achieved to a greater or lesser extent—even if it was only a possibility at the time—through Article 3(9).
- 529.
Article 3(1)(b) in conjunction with Article 3(9).
- 530.
Article 3(9), second subparagraph of Directive 96/71.
- 531.
Article 3(1)(b), second subparagraph of Directive 96/71.
- 532.
After all, the former is not the employer of the person concerned.
- 533.
Art. 1(3)(c), second subparagraph of Directive 96/71.
- 534.
Van Nuffel and Afanasjeva (2018), p. 1425.
- 535.
Recital 13 of the Preamble of Directive 2018/957.
- 536.
At the time, the Directive was written in order to take particular account of the needs of the construction sector, which was known to be characterised by major social dumping. See Houwerzijl (2005), p. 66. Initially, for example, the Posting of Workers Directive 96/71 provided that collective agreements applied in principle only to the construction sector (Article 3(1), second indent), a restriction which is now lifted in the new Posting of Workers Directive.
- 537.
See conclusion of Advocate General Bobek in CJEU 1 December 2020, Federatie Nederlandse Vakbeweging v Van den Bosch Transporten BV e.a., C-815/18, ECLI:EU:C:2020:976.
- 538.
See also the discussion on posting in social security law (see Chap. 4, Sect. “Second Condition: Direct Relationship Between the Employee and the Posting Employer”.).
- 539.
CJEU 30 November 1995, Reinhard Gebhard v Consiglio dell’Ordine degli Avvocati e Procuratori di Milano, C-55/94, ECLI:EU:C:1995:411, para 27.
- 540.
See for instance CJEU 11 December 2003, Schnitzer, C-215/01, ECLI:EU:C:2003:662, para 30: The concept of ‘service’ within the meaning of the Treaty may therefore cover services of a very different nature, including services provided over a long period of time, even several years, for example, in the context of the construction of a large building. It may also concern services within the meaning of the Treaty where an economic operator established in a Member State provides services to persons established in one or more other Member States on a more or less frequent or regular basis, even for a longer period of time, such as consultancy or information services in return for payment. See also Feenstra (2009), p. 256. For examples of application in the medical sector (CJEU of 5 October 2010, Elchinov, C-173/09, ECLI:EU:C:2010:581; CJEU 13 May 2003, Müller-Fauré and van Riet, C-385/99, ECLI:EU:C:2003:270 and CJEU 28 April 1998, Kohll v Union des caisses de maladie, C-158/96, ECLI:EU:C:1998:335.); among lawyers (CJEU 3 December 1974, Johannes Henricus Maria van Binsbergen v Bestuur van de Bedrijfsvereniging voor de Metaalnijverheid, C-33/74, ECLI:EU:C:1974:131.); a coffee shop owner (CJEU 16 December 2010, Marc Michel Josemans tegen Burgemeester van Maastricht, C-137/09, ECLI:EU:C:2010:774.) or even a prostitute (CJEU 20 November 2001, Jany e.a., C-268/99, ECLI:EU:C:2001:616.). In the context of the Temporary Agency Work Directive 2008/104 the Court of Justice allows the Member States a very broad interpretation of the concept of temporary work abroad as long as an objective explanation can be given of the long lasting character of the activities abroad (CJEU 17 March 2022, Daimler AG, C-232/20, ECLI:EU:C:2022: 196).
- 541.
See Kullmann (2015), p. 211.
- 542.
Art. 4(1) of Directive 2014/67.
- 543.
This can be evidenced by an A1 certificate. Although the directive does go a bit far—after all, an A1 certificate is not a constitutive requirement—by assuming (see para 12) that the absence of such a certificate may be an indication that there is no posting.
- 544.
An element that is key under the Rome I Regulation.
- 545.
- 546.
Piir (2019), p. 106.
- 547.
Art. 3(7) of Directive 96/71.
- 548.
However, it does not seem to us that this would retroactively change the applicable law from the outset. (See contra Piir (2019), p. 107.). After all, paragraph 1a of Article 3 refers to the actual duration of the posting.
- 549.
Directive (EU) 2018/957, para 9. The provisions of the Rome I Regulation and the free movement of services will continue to apply.
- 550.
See also recital 9 of the Preamble to Directive (EU) 2018/957.
However, in view of the long duration of some postings and in acknowledgment of the link between the labour market of the host Member State and the workers posted for such long periods, where posting lasts for periods longer than 12 months, host Member States should ensure that undertakings which post workers to their territory guarantee those workers an additional set of terms and conditions of employment that are mandatorily applicable to workers in the Member State where the work is carried out.
- 551.
In the case of initial assembly and/or first installation of goods where this is an integral part of a contract for the supply of goods and necessary for taking the goods supplied into use and carried out by the skilled and/or specialist workers of the supplying undertaking, with the exception of the construction activities provided for in the Annex, the arrangements for minimum paid annual leave and remuneration shall not, however, apply. Member States may, after consulting employers and labour, in accordance with the traditions and practices of each Member State, decide not to apply the system of remuneration in cases of posting where either a contract has been concluded between the undertaking of the recipient of the service and in cases of posting within a group, when the length of the posting does not exceed 1 month. (This concerns the first two forms of posting as provided for in Art. 1(3) of Directive 96/71.)
- 552.
To the extent that they are provided for in certain legal instruments.
- 553.
Art. 1(2)(b) of Directive (EU) 2018/957.
- 554.
Except if the initial period is extended to 18 months.
- 555.
An exception applies here for successive postings.
- 556.
See below under Chap. 4, section “Fourth Condition: Temporary Nature of Posting”. (Art. 12 of Regulation 883/2004 refers to the foreseeable duration of postings. The Commission’s proposal for revising the Posting of Workers Directive was also along these lines: see Article 2a and recital 8 of the Preamble, which aimed to declare the extended hard core applicable from the beginning of the posting when it is envisaged to last more than 24 months. (In the final Directive, this period has also been reduced.)
- 557.
See in that sense for instance also Piir (2019), p. 107.
- 558.
See also recital 10 of the Preamble to Directive (EU) 2018/957.
- 559.
Not in the least the 24 months, as we know, in EU regulations on the coordination of social security.
- 560.
See also Franzen (2019), p. 22.
- 561.
Fourth subparagraph of Art. 3 (1)(a) of Directive (EU) 2018/957.
- 562.
Art. 12(1) of Regulation 883/2004.
- 563.
See below Chap. 4, section “Fifth Condition: No Posting to Replace Another Posted Worker”.
- 564.
See also Bottero (2020), pp. 266–267.
- 565.
Consequently, this goes much further than the Commission’s original proposal (COM (2016) 128 final, paragraph 2 of Article 2(a).), where the Commission claimed that the cumulative duration of the posting periods of the workers concerned be taken into account, with regard to workers that are posted for an effective duration of at least 6 months.
- 566.
See Houwerzijl (2005), p. 87. As a matter of fact, the Commission wanted to apply the provisions on holidays and minimum wage only if the posting exceeded three months over a period of one year. (Art. 3(2) of COM (1991) 230, 22.)
Reasons for this were their marginal nature, the minimum number of postings, and their limited relevance in view of practices leading to a distortion of industrial relations (p. 15). Throughout the entire negotiation phase, the Commission has been insisting on a threshold. See also extensively Evju and Novitz (2014), pp. 47 et seq.
- 567.
The Commission also follows that path (SWD (2017) 186 final.). The PWD applies to businesses in all sectors (except the merchant navy and the self-employed) that temporarily post workers to a Member State other than the one in which the worker habitually works. It does not establish the minimum duration of the temporary work, hence the core set of terms and conditions of employment of the host country apply in principle to foreign transport operators and their employees from the very first moment of their activity in the host State, regardless of the total duration and/or frequency of operations. See also the Commission’s position in the Mazzoleni case (conclusion of Advocate General Alber in CJEU 15 March 2001, Mazzoleni and ISA, C-165/98, ECLI:EU:C:2001:162, para 61.): the duration of the provision of services is not a condition for its applicability.
- 568.
See e.g. Advocate General Alber in CJEU 15 March 2001, Mazzoleni and ISA, C-165/98, ECLI:EU:C:2001:162 which refers in paragraph 70 to the Council’s common position where a compromise was reached between the position of the Commission and certain delegations, on the one hand, which requested that the application for short periods of posting up to a certain threshold should not be compulsory, and the position of the other delegations, on the other hand, which wanted either compulsory application from the first day of posting or optional non-application for short periods of posting. See also the conclusion of Advocate General Bobek in CJEU 1 December 2020, Federatie Nederlandse Vakbeweging v Van den Bosch Transporten BV e.a., C-815/18, ECLI:EU:C:2020:976, para 120.
- 569.
Van Hoek (2000), p. 317, footnote 22. Van Hoek points out that one might wonder whether delivery and assembly work constitutes a self-contained provision of services, or whether it does not rather form part of the free movement of goods?
- 570.
Art. 3(2) of Directive 96/71.
- 571.
Recital 14 of the Preamble of Directive 96/71 also stipulates that a ‘hard core’ of rules should be observed by the provider of the services, notwithstanding the duration of the worker’s posting.
- 572.
Art. 3(3) and 3(5) of Directive 96/71. As far as collective labour agreements are concerned (Article 3(4)), this may also be limited to 1 month for postings.
It is up to the national Member States to determine what is to be considered as small-scale activities.
- 573.
CJEU 19 December 2019, Dobersberger, C-16/18, ECLI:EU:C:2019:1110 and CJEU 1 December 2020, Federatie Nederlandse Vakbeweging v Van den Bosch Transporten BV e.a., C-815/18, ECLI:EU:C:2020:976.
- 574.
See CJEU 1 December 2020, Federatie Nederlandse Vakbeweging v Van den Bosch Transporten BV e.a., C-815/18, ECLI:EU:C:2020:976.
- 575.
CJEU 19 December 2019, Dobersberger, C-16/18, ECLI:EU:C:2019:1110, para 31 and CJEU 1 December 2020, Federatie Nederlandse Vakbeweging v Van den Bosch Transporten BV e.a., C-815/18, ECLI:EU:C:2020:976. The Court thus establishes a link with the exceptions expressly listed in the Directive.
- 576.
This constitutes a typical example of an activity which can perfectly be outsourced. (Iossa (2021), p. 23.). The Court considered this activity as ancillary and inherently connected to the activity of passenger transport (see CJEU 19 December 2019, Dobersberger, C-16/18, ECLI:EU:C:2019:1110, para 25.). If we divide the transport sector into, for example, the actual train drivers and the cleaning staff, this can lead to situations where different groups are subject to different regulations.
- 577.
Wages in Hungary are about one third of Austrian wages.
- 578.
CJEU 1 December 2020, Federatie Nederlandse Vakbeweging v Van den Bosch Transporten BV e.a., C-815/18, ECLI:EU:C:2020:976, para 51.
- 579.
See CJEU 1 December 2020, Federatie Nederlandse Vakbeweging v Van den Bosch Transporten BV e.a., C-815/18, ECLI:EU:C:2020:976, para 52.
- 580.
Where the Rome I Regulation determines the law applicable to the entire employment relationship, the Posting of Workers Directive refers to the overriding mandatory provisions. These criteria can be found in CJEU 16 December 2010, Heiko Koelzsch v État du Grand Duchy of Luxemburg, C-29/10, ECLI:EU:C:2010:789 and CJEU 14 September 2017, Sandra Nogueira e.a. v Crewlink Ireland Ltd and Michel José Moreno Osacar v Ryanair Designated Activity Company, C-168/16 and C-169/16, ECLI:EU:C:2017:688. Advocate General Bobek is of the opinion that in the Van den Bosch case, a link should be made between both instruments (CJEU 1 December 2020, Federatie Nederlandse Vakbeweging v Van den Bosch Transporten BV e.a., C-815/18, ECLI:EU:C:2020:976, para 105.). After all, if one applies a sufficient level of abstraction, both aim to establish the material links with a Member State.
- 581.
Duration of the train journey: 2 h or 28% in Hungary, 3 h 40 min or 51% in Austria, and 1 h 30 min or 21% in Germany.
- 582.
The train journey also took place on board an Austrian train.
- 583.
But not quite: The impact assessment of the proposal for the subsequent Posting of Workers Directive 2018/957 already mentioned the need for a sector-specific text for the transport sector and pointed out that this option would consist in defining that the application of the Directive to international transport operations other than cabotage (which is always covered by the Directive) requires the existence of a sufficient link with the host Member States. In order to provide a high level of legal certainty, the criteria to determine the existence of a sufficient link should be expressly set out. In any case, given that cabotage falls in any case within the scope of the Directive, international transport operations combined with a cabotage operation should also fall within the scope of the Directive. For other international transport operations, the sufficient link should be expressed in the number of transport operations in a given Member State within a reference period (1 month, for instance) or in any other way that is applicable in practice and enforceable in the host Member State. See Impact assessment proposal SWD (2016) 52, point 4.5.3.
- 584.
See conclusion of Advocate General Szpunar in CJEU 19 December 2019, Dobersberger, C-16/18, ECLI:EU:C:2019:11, paras 58–60. After all, it is in Hungary that they pay for their housing and do their groceries.
- 585.
However, the Advocate General follows a questionable line of reasoning in this regard by stating that the place of work of these train employees is actually irrelevant, since they do not work in Austria, so that the persons concerned are not actually posted to Austria but, at most, are posted ‘on the territory’ of the train which, in this case, passes through Austria. Their place of work is no different in this respect from that of employees working on the tram in Budapest. The fact that the train actually stops a few times in Austria (four stations) does not really play a role in this. Would it make any difference if, for example, the person concerned got off the train in Austria and changed trains? Would it make a difference if, for example, the employee concerned stepped off the train in Austria and was replaced by another employee? If the employee concerned boards the train in Austria and leaves the train again in Austria, there is of course no question of international employment. Besides, there is nothing to prevent these Austrian employers from entering into competition with Hungarian employers and thus performing the same activities from Budapest. In such situations, these Austrian employers would also benefit from the application of Hungarian law.
- 586.
See the conclusion of Bobek in CJEU 1 December 2020, Federatie Nederlandse Vakbeweging v Van den Bosch Transporten BV e.a., C-815/18, ECLI:EU:C:2020:976, para 96.
- 587.
See further, this chapter, Sect. 3.2.3.5.3.
- 588.
As is also the case in Directive 2020/1057 (Directive (EU) 2020/1057 of the European Parliament and of the Council of 15 July 2020 laying down specific rules with respect to Directive 96/71/EC and Directive 2014/67/EU for posting drivers in the road transport sector and amending Directive 2006/22/EC as regards enforcement requirements and Regulation (EU) No 1024/2012 (2020) OJ L249.).
- 589.
CJEU 1 December 2020, Federatie Nederlandse Vakbeweging v Van den Bosch Transporten BV e.a., C-815/18, ECLI:EU:C:2020:976, para 49.
- 590.
CJEU 1 December 2020, Federatie Nederlandse Vakbeweging v Van den Bosch Transporten BV e.a., C-815/18, ECLI:EU:C:2020:976, para 48.
- 591.
This is to be expected, especially in border regions. See also Rocca (2020), p. 67 (C).
- 592.
CJEU 15 March 2001, Mazzoleni and ISA, C-165/98, ECLI:EU:C:2001:162.
- 593.
In his conclusion, Advocate General Alber points out that ‘one may not, however, fail to recognise the fact that the term part-time posting is not used by the referring Court in the classical sense of part-time employment. Thus, one cannot rule out the possibility that the special circumstances of workers who divide up their working hours due to the necessity of providing their services at different places may involve special problems which require independent consideration. The duration and extent of the services to be provided could therefore undoubtedly play a decisive role.’ (Conclusion of Advocate General Alber in CJEU 15 March 2001, Mazzoleni and ISA, C-165/98, ECLI:EU:C:2001:162, para 63.)
- 594.
In particular, the Commission had defended the view that the concept of ‘period of posting’ could include the proportion, varying or not, of working time which a frontier worker employed by an undertaking in a Member State spends in the course of the day, week, or month in the neighbouring territory of one or more other Member States.
- 595.
However, see contra Windisch-Graetz (2013), pp. 13 et seq.
- 596.
In particular, it did not concern workers posted from the Member State in which their employer is established to carry out a particular project in another Member State for a longer or shorter period, but an undertaking established in a frontier zone, some of whose employees, in the context of the provision of services by the undertaking, may have to perform part of their work, if necessary on a part-time basis, in the neighbouring territory of a Member State other than that in which the undertaking is established. Following Giessen, a distinction is made here between ‘prolonged temporariness’ and ‘short-term temporariness’ and Mazzoleni thus rather corresponds to following Giesen, a distinction is made here between long-term “temporarily” and short-term “temporarily” and Mazzoleni thus rather corresponds to a kind of establishment. Giesen (2003), p. 155.
- 597.
- 598.
In the discussions on a specific directive for the transport sector, the idea of quantification was first proposed by the European Commission but was subsequently rejected. CJEU 15 March 2001, Mazzoleni and ISA, C-165/98, ECLI:EU:C:2001:162 and see further, this chapter, Sect. 3.2.3.4.4.2.
- 599.
- 600.
Article 1(3)(a) of Directive 96/71.
- 601.
See European Commission proposal on the Posting of Workers Directive: COM (91) 230 final, 15. The first proposal of the European Commission in 1972 (OJ C49 of 1972, p. 26) stated that the provisions in the country of temporary employment concerning the requirement of prior authorisation by the public authorities for the termination of the employment relationship would also be applied, insofar as this arrangement serves to prevent unemployment. (Art. 5(2) in conjunction with Art. 4(2).).
- 602.
See also Houwerzijl and Van Hoek (2016), p. 240.
- 603.
Which, in the context of the COVID-19 pandemic, caused some problems (e.g. in the case of quarantine measures in the host State, one is entitled to sick pay as stipulated under the home State or certain schemes of temporary unemployment not being accessible to posted workers as an aid measure in the context of this crisis) (see e.g. Confederation Syndicat European Trade Union (2020).).
- 604.
To the extent that they are provided for in certain legal instruments (see below Sect. 3.2.3.5.2.).
- 605.
Art. 3(1) of Directive 96/71.
- 606.
It makes little sense to mention this, unless the Member State concerned does not regard it as pay.
- 607.
Problems arose in the first place with the question of determining the level of these minimum rates of pay. (Minimum wages can be calculated in hourly or monthly wages, there can be different minimum wage levels per sector or per job, or there can be a uniform basic minimum wage. Where wages are not calculated on an hourly basis, it was necessary to consider how this remuneration relates to the number of hours worked and other relevant factors (see also COM (2006) 159 final.), which often also differ according to the position and qualification of the worker concerned). Therefore, it was felt that the lowest level should also be considered, what the Court of Justice ultimately considered to be non-compliant (see CJEU 12 February 2015, Sähköalojen ammattiliitto, C-396/13, ECLI:EU:C:2015:86.).
- 608.
In this regard, the case law of the Court of Justice has also evolved considerably. Although the concept of ‘minimum wage’ is defined by the national legislation and/or national practices of the host country, that country cannot simply impose its own wage structure without restriction when comparing this minimum wage with wages paid by employers established in other Member States. Before the Posting of Workers Directive, the Court had already ruled that loyalty stamps and bad-weather stamps may not be taken into account in the calculation of the minimum wage (CJEU 23 November 1999, Arblade Leloup, C-369/96 and C376/96, ECLI:EU:C:1999:575, para 46.). Since the amount payable under the ‘loyalty stamps’ and ‘bad-weather stamps’ schemes is calculated on the basis of the gross minimum wage, it cannot be an integral part of the latter. In two cases concerning the Posting of Workers Directive, the Court of Justice had also ruled that extra allowances and benefits paid by employers established in one Member State to their workers posted to another Member State, which do not alter the relationship between the worker’s performance and the compensation which he receives in return, may be taken into account as part of the minimum wage. It is perfectly normal, for example, that if, in special circumstances, the employer requires the worker to carry out more work or to work more hours, the worker receives compensation for that additional work, without that compensation being taken into account for the calculation of the minimum wage. (CJEU 14 April 2005, Commission v Germany, C-341/02, ECLI:EU:C:2015:220, paras 39–40. See also CJEU 7 November 2013, Isbir v DB Services Gmbh, C-522/12, ELCI:EU:C:2013:711, paras 38–39.) In this last case (para 44.), capital formation—payment by the employer of a monetary contribution to allow the formation of a capital amount on behalf of the worker—was not considered to be part of the minimum rates of pay. Even if such a contribution is not separable from the work done, it is distinguishable from the salary itself. Since its aim, by the formation of a capital amount that the worker will benefit from in the longer term, is to achieve an objective of social policy supported, in particular, by a financial contribution from the public authorities, it cannot be regarded as minimum rates of pay for the application of Directive 96/71.
In later cases (CJEU 12 February 2015, Sähköalojen ammattiliitto, C-396/13, ECLI:EU:C:2015:86 and CJEU 8 July 2021, Rapidsped, C-428/19, ECLI:EU:C:2021:548, para 50.), the Court clearly opted for a broad interpretation in favour of the worker. According to these criteria, the minimum wage calculated on the basis of the applicable collective agreements cannot depend on the free choice of the employer who posts workers only with a view to offering lower labour costs than those of local workers. In the case in question, the minimum wage in the collective agreement was calculated on the basis of different criteria, i.e. (1) classification of the employees into wage groups, (2) determination of the remuneration (per hour or per finished item), (3) granting the employees holiday pay, a daily allowance, and a travel time allowance, and (4) financing of their accommodation. According to the Court, the calculation of the minimum wage must take account of the rules for classifying workers in wage groups applied in the host Member State on the basis of various criteria such as, in particular, the qualification, training, and experience of the workers and/or the nature of the work they carry out (para 43) as well as a daily subsistence allowance intended to ensure the social protection of the workers concerned in so far as it compensates for the disadvantages arising from the posting which are linked to the fact that the persons concerned are far removed from their usual environment (para 48) and a daily travel time allowance paid to workers on condition that their daily commute to and from work exceeds 1 h (para 56). This case made it clear that a practice whereby posted workers only received the lowest level of minimum wage was unacceptable. The new concept of remuneration can be seen as a codification of this judgment. In CJEU 8 July 2021, Rapidsped, C-428/19, ECLI:EU:C:2021:548, para 50, the Court took the view that daily allowances to cover expenses incurred during the posting of workers abroad form part of the minimum wage. The very fact that the amount of this allowance varies depending on whether the posting lasts 3, 4, or 5 weeks, or even longer, and that it is therefore flat-rate and progressive in nature, suggests that it is actually not intended to cover the expenses incurred by workers abroad.
- 609.
- 610.
Art. 3(1)(3) of Directive 96/71.
- 611.
For example, continued payment of wages in the event of sickness. Since posted workers are often covered by the social security system of the posting State, they are not covered by the Posting of Workers Directive. Wage payments in the event of holidays and pregnancy fall under Article 3(1)(b) and (f) respectively.
- 612.
See also Lhernould and Palli (2017), p. 126.
- 613.
See proposal COM 2016 (128) final, para 12. This is in line with the judgment of the Court of Justice in CJEU 7 November 2013, Isbir v DB Services Gmbh, C-522/12, ELCI:EU:C:2013:711, para 37: ‘In that context, it must be noted that Directive 96/71 does not itself provide any substantive definition of the minimum wage. The task of defining what are the constituent elements of the minimum wage, for the application of that directive, therefore comes within the scope of the law of the Member State concerned, but only in so far as that definition, deriving from the legislation or relevant national collective agreements, or as interpreted by the national courts, does not have the effect of impeding the free movement of services between Member States.’ (See also CJEU 12 February 2015, Sähköalojen ammattiliitto, C-396/13, ECLI:EU:C:2015:86, para 34.)
- 614.
Another example is a company car.
- 615.
Which excludes, for example, company collective labour agreements.
- 616.
Only posted temporary agency workers are entitled to this (see further above, this chapter, Sect. 3.2.3.4.3.).
- 617.
Art. 3(1) (h, i) of Directive 2018/957.
- 618.
See recital 7 of the Preamble of Directive 2018/957.
- 619.
Which is, after all, further regulated in Article 3(7).
- 620.
See Preamble 18 of Directive 2018/957. Nevertheless, in the interests of transparency and in order to assist the competent authorities and bodies in carrying out checks, it is necessary to be able to distinguish in sufficient detail the components of remuneration in accordance with the national law and/or practice of the Member State from which the worker was posted.
- 621.
Suppose one has a salary of 800 EUR in the home country, and receives various other allowances totalling 1000 EUR (e.g. 600 EUR posting allowance, 200 EUR as annual bonus, and 200 EUR bonus for special working conditions), these together meet the wage of 1800 that must be paid according to the legislation/collective agreements in the host State (wage: 1200 EUR, bonus for particular working conditions of 150 EUR, 200 EUR posting allowance, and 250 EUR overtime payment).
- 622.
The Court of Justice, however, is less unambiguous on this point. In the Commission v Germany case, the Court clearly considers the gross wages to be taken into account, but in the previous Mazzoleni case—although in this case no ruling has yet been given on the concept of minimum wage as laid down in Directive 96/71—the Court had clearly expressed a preference for a comparison based on net wages (in contrast to the conclusion of the Advocate General). However, the factual situation in this case is special, involving a French employer who temporarily posted workers to Belgium, alternating (on a daily, weekly, or monthly basis) work in France and in Belgium in the security sector. According to the Court, the obligation to pay a minimum wage is disproportionate in the situation at issue. In the Mazzoleni case, the Court appears to point out that the concept of posting does not cover a situation in which workers perform part of their work, part-time and for short periods, in the territory of one or more Member States. (CJEU 14 April 2005, Commission v Germany, C-341/02, ECLI:EU:C:2015:220 and CJEU 15 March 2001, Mazzoleni and ISA, C-165/98, ECLI:EU:C:2001:162.)
According to the Commission, the gross pay should be considered because the Directive does not cover social security and taxation. SEC (2006) 439, 159 and COM (2006) 159 final.
- 623.
See CJEU 12 February 2015, Sähköalojen ammattiliitto, C-396/13, ECLI:EU:C:2015:86, para 44: ‘However, if they are to be enforceable against an employer posting workers, the rules on the categorisation of those workers into pay groups which are applied in the host Member State must also be binding and meet the requirements of transparency, which means, in particular, that they must be accessible and clear. It is for the national court to ascertain whether those conditions are met in the case before it.’
- 624.
See Art. 3(1)(4) of Directive 2018/957 and Art. 5 of Directive 2014/67.
- 625.
In accordance with Article 3(7) of the Posting of Workers Directive then in force, allowances specific to the posting were considered to be part of the minimum wage, unless they were paid as reimbursement of expenditure actually incurred in relation with the posting, such as travel expenses, subsistence expenses, and reimbursement of expenses. Reading Article 3(7) led to the special conclusion that, for example, lump-sum allowances paid to posted workers must be taken into account when determining the minimum wage, even if the worker concerned were to use those allowances for food and accommodation, whereas an equivalent allowance from the employer to reimburse food and accommodation costs could not be taken into account.
- 626.
A well-known example of this is the Polish DIETY, which is an additional lump-sum daily allowance paid by Polish employers to their employees who are temporarily posted abroad. Under Polish law, DIETY is regarded as reimbursement of costs incurred by the employee as a result of carrying out work abroad on behalf of the employer. It is mainly intended to cover the cost of food.
- 627.
The higher the allowances, the lower the wages to be paid and therefore the lower the social security contributions/taxes to be paid.
- 628.
Paragraph 2 of Art. 3 (7) of Directive 96/71. The Court has already ruled (Sähköalojen ammattiliitto, para 62) that meal vouchers are not part of the minimum wage and must therefore be paid additionally by the employer. However, recital 8 of the Preamble of Directive 2018/957 provides that double payment of travel, meal, and accommodation expenses should be avoided.
- 629.
Paragraph 3 of Article 3(7).
- 630.
Provided that they are not included in a company collective agreement, which does not fall within the scope of the directive (for an overview of the cost reimbursement scheme for posted workers in the EU, see Rasnaca (2019).
- 631.
- 632.
See recital 19 of the Preamble of Directive 2018/857: The employer should reimburse posted workers for such expenditure in accordance with the national law and/or practice applicable to the employment relationship.
- 633.
See CJEU 18 December 2007, Laval un Partneri, C-341/05, ECLI:EU:C:2007:809, para 68.
- 634.
EU law does not provide for a system of universal application.
- 635.
See CJEU 3 April 2008, Rüffert, C-346/06, ECLI:EU:C:2008:189, para 28.
- 636.
Under original Directive 96/71, this obligation only applied to CLAs in the construction sector. It has now been lifted.
- 637.
The latter option was introduced by Directive 2018/957 as a comprehensive alternative, whereas under the original Directive 96/71, this option was only available if the Member State concerned did not have an extension system. This third option therefore does not require the State to have made an extension.
- 638.
It is therefore possible for different regional wages and working conditions to be established, as long as they are concluded by organisations that are representative of the national territory. In this respect, it is irrelevant whether they are national collective agreements which make allowances for regional differences or regional collective agreements which are concluded by representative organisations and which, taken together, cover the entire territory. See Klein and Schneider (2018), p. 28.
- 639.
See in particular Klein and Schneider (2018), p. 28 and Rocca (2018), p. 25.
The Directive now provides for this third option in the absence of, or in addition to a system a system for declaring collective agreements to be of universal application.
In the past, this had led to restrictions: the Court of Justice had ruled in the Rüffert case that a measure of a legislative nature under which the contracting authority may award public works contracts only to undertakings which, in submitting a tender, agree in writing to pay their employees, in return for performance of the work, at least the remuneration laid down in the collective agreement in force at the place where the work is carried out could not be imposed on foreign employers, because the collective agreement in question does not impose a minimum wage within the meaning of the Directive. (CJEU 3 April 2008, Rüffert, C-346/06, ECLI:EU:C:2008:189.) Since it is not a collective agreement falling within the scope of the Directive, first, because the legislation which gives it that effect applies only to public contracts to the exclusion of private contracts and, second, because that collective agreement has not been declared universally applicable (para 29.). In a later case (CJEU 17 November 2015, RegioPost, C-115/14, ECLI:EU:C:2015:760, part 62.), the Court will partially remedy this by pointing out that such a scheme was applicable because the minimum wage was now laid down by law and the fact that the private sector was not covered by those rules did not constitute a barrier as the condition of general applicability described applies only to the collective agreements referred to in the second indent of the first subparagraph of Article 3(1) of that Directive (see in this connection Rocca (2016), pp. 57–58.). Therefore, it is no longer required to lay down such obligations in laws and wages/working conditions in regional/professional/industrial collective agreements that are generally applicable can be extended to posted workers and applied in addition to the universally applicable collective agreements.
- 640.
CJEU 25 October 2001, Portugaia Construções, C-70/98, ECLI:EU:C:2001:564, para 34. See now Art. 3(8)(3) of Directive 96/71.
Equality of treatment, within the meaning of this article, shall be deemed to exist where national undertakings in a similar position: “(a) are subject, in the place in question or in the sector concerned, to the same obligations as posting undertakings as regards the matters listed in the first subparagraph of paragraph 1, and, where applicable, as regards the terms and conditions of employment to be guaranteed posted workers in accordance with paragraph 1a of this article, and (b) are required to fulfil such obligations with the same effects.”
- 641.
- 642.
In addition, it is often not possible for them to be declared universally applicable under national law. As a result, inequality continues to exist and the extension of the legal source of the nucleus would have a rather limited effect (Zahn (2017), p. 206.). It is therefore not possible that only national companies—unlike foreign companies—could deviate from sectoral collective agreements through company collective agreements.
- 643.
Especially when this is also encouraged by the European Commission. See Rocca (2015), pp. 325–327. Rocca sees a lot of method in … this incoherence.
- 644.
Art. 3(10) of Directive 96/71.
- 645.
See also recital 17 of the Preamble of the Directive: ‘Whereas the mandatory rules for minimum protection in force in the host country must not prevent the application of terms and conditions of employment which are more favourable to workers’. See also Houwerzijl (2005), p. 162.
- 646.
Belgium is a good example of this, as it stipulated that all provisions that are the subject of criminal proceedings must be complied with.
- 647.
Statement 10 cited in COM (2003) 458 final, 14.
- 648.
A Member State may, on grounds of public policy, prevent, where appropriate, a national of another Member State from availing himself of the principle of freedom of movement for workers in order to take up a particular employment relationship, even if it does not impose any similar restriction on its own nationals (CJEU 4 December 1974, Yvonne van Duyn v Home Office, C-41/71, ECLI:EU:C:1974:133, see however contra CJEU 20 November 2001, Jany e.a., C-268/99, ECLI:EU:C:2001:616, in which the Court held that conduct cannot be regarded as sufficiently serious to justify restrictions on the admission to the territory of a Member State of a national of another Member State where the first State does not adopt, in respect of the same conduct by its own nationals, repressive measures or other real and effective measures aimed at combating it. This concerned in particular the exercise of an economic activity as a prostitute.) The concept of policy order implies ‘a genuine and sufficiently serious threat’ affecting one of the fundamental interests of society. The exception relating to public policy must therefore be interpreted restrictively (see CJEU 19 January 1999, Criminal proceedings against Donatella Calfa, C-348/96, ECLI:EU:C:1999:6, para 11 and CJEU 9 March 2000, Commission v Belgium, C-355/98, ECLI:EU:C:2000:113.).
There must be a genuine and sufficiently serious threat to a fundamental interest of society (CJEU 27 October 1977, Régina v Pierre Bouchereau, C-30/77, ECLI:EU:C:1977:172 and also e.g. CJEU 29 October 1988, Commission of the European Communities v Kingdom of Spain, C-114/97, ECLI:EU:C:1998:519.).
- 649.
CJEU 23 November 1999, Arblade Leloup, C-369/96 and C376/96, ECLI:EU:C:1999:575, para 30.
- 650.
CJEU 19 June 2008, Commission v Luxembourg, C-319/06, ECLI:EU:C:2008:350, para 50.
- 651.
CJEU 19 June 2008, Commission v Luxembourg, C-319/06, ECLI:EU:C:2008:350, paras 29–30; with reference to CJEU 23 November 1999, Arblade Leloup, C-369/96 and C376/96, ECLI:EU:C:1999:57.
- 652.
In this regard, the Court expressly refers to Statement 10 of the Council and the Commission (para 32).
- 653.
CJEU 19 June 2008, Commission v Luxembourg, C-319/06, ECLI:EU:C:2008:350, para 65.
- 654.
COM (2003) 458 final, 13–15.
- 655.
See in this regard the expert group of 1999 in preparation for the transposition of the Posting of Workers Directive; see also Houwerzijl (2005), pp. 147–148.
- 656.
- 657.
The new directive, which imposes additional labour law provisions, makes this question even more pertinent.
- 658.
Van Hoek (2009), p. 80.
- 659.
See conclusion of Advocate General Bot in CJEU 3 April 2008, Rüffert, C-346/06, ECLI:EU:C:2008:189, paras 83–84. See also recitals 13 and 17 of the Preamble to Directive 96/71.
- 660.
Moissard (2008), p. 868.
- 661.
One can imagine, for example, that applying the provisions on health and safety in the host State makes little sense (see also Piir (2019), p. 113.). In addition, it is also true that most of the provisions of this hard core are regulated by European law.
- 662.
CJEU 18 December 2007, Laval un Partneri, C-341/05, ECLI:EU:C:2007:809, para 80 and CJEU 3 April 2008, Rüffert, C-346/06, ECLI:EU:C:2008:189, paras 31–32.
- 663.
CJEU 18 December 2007, Laval un Partneri, C-341/05, ECLI:EU:C:2007:809, para 81 and CJEU 3 April 2008, Rüffert, C-346/06, ECLI:EU:C:2008:189, para 34.
- 664.
CJEU 18 December 2007, Laval un Partneri, C-341/05, ECLI:EU:C:2007:809, para 99.
- 665.
Contra conclusion of Advocate General Bot in CJEU 3 April 2008, Rüffert, C-346/06, ECLI:EU:C:2008:189.
- 666.
CJEU 3 April 2008, Rüffert, C-346/06, ECLI:EU:C:2008:189, paras 38–39. This is not the case for minimum wages imposed under a collective agreement that has not been declared universally applicable. This would be different if they were included in a law (CJEU 17 November 2015, RegioPost, C-115/14, ECLI:EU:C:2015:760, para 75.).
- 667.
- 668.
See e.g. Davies (2008), p. 295.
- 669.
Art. 3(1)(a) of Directive 96/71: with the exception of arrangements concerning the termination of employment contracts and supplementary company pension schemes.
- 670.
See CJEU 8 December 2020, Republic of Poland V European Parliament and Council of the European Union, C-626/18, ECLI:EU:C:2020:1000, para 69.
- 671.
Art. 1(2) of Directive 96/71. Moreover, it is general practice in European social law to exclude seafarers from the scope of application. See, for example, Art. 1(2) of Council Directive 98/59/EC of 20 July 1998 on the approximation of the laws of the Member States relating to collective redundancies (1988) OJ L225; Art. 1(3) of Council Directive 2001/23/EC of 12 March 2001 on the approximation of the laws of the Member States relating to the safeguarding of employees’ rights in the event of transfers of undertakings, businesses or parts of undertakings or businesses (2001) OJ L82 and Art. 1(7) of Directive 2009/38.
- 672.
See Feenstra (2009), p. 300 and COM (2007) 591 final, 8.
- 673.
See Polak cited in Houwerzijl (2005), p. 120.
- 674.
See also Thomas (2019).
- 675.
CJEU 12 December 1974, B.N.O. Walrave, L.J.N. Koch v Association Union Cycliste internationale, Koninklijke Nederlandsche Wielren Unie en Federación Española Ciclismo, C-36/74, ECLI:EU:C:1974:140; CJEU 12 July 1984, Prodest v Caisse primaire d’assurance maladie de Paris, C-237/83, ECLI:EU:C:1984:277 and in particular with regard to a vessel: CJEU 27 September 1989, Lopes da Veiga v Staatssecretaris van Justitie, C-9/88, ECLI:EU:C:1989:346, para 15. See also Verschueren (1990), p. 324.
- 676.
CJEU 27 September 1989, Lopes da Veiga v Staatssecretaris van Justitie, C-9/88, ECLI:EU:C:1989:346, para 17.
- 677.
See versus the opinion of Advocate General Szpunar in CJEU 19 December 2019, Dobersberger, C-16/18, ECLI:EU:C:2019:11, para 52, who points out that the provision on seafarers cannot be read in an exhaustive manner. (Although, in paragraph 37, he does first point out that it seems to be generally accepted that, from a legal point of view, transport services are covered by Directive 96/71.)
- 678.
For instance, there have previously been signals indicating the possible application of this directive to transport undertakings. Some specific directives within the transport sector allude in particular to the application of the Posting of Workers Directive, such as Regulation 1072/2009 (para 17: The provisions of Directive 96/71/EC of the European Parliament and the Council of 16 December 1996 concerning the posting of workers in the framework of the provision of services apply to transport undertakings performing a cabotage operation.), or Regulation 1214/2011 (para 15: Considering the specific nature of CIT transport services, there is a need to provide for the analogous application of Directive 96/71/EC to all cross-border cash transport services in order to provide legal certainty for operators and ensure the practical applicability of the Directive in this sector. However, according to Article 24, this only applies to the relevant minimum rates of pay, including overtime rates, guaranteed in the host Member State. But as soon as more than 100 days a year are spent working wholly or partly in other Member States, all the protection provisions of Directive 96/71 shall apply. On the other hand, however, we could also notice signs to the contrary. For example, there is a joint statement by the Council and the Commission—the legal value of which is, of course, rather limited—stipulating that at least Article 1(3)(a) of Directive 96/71 would not apply to the transport sector (Council document 10048/96 SOC 264 CODEC 550, statement No 3.). However, in a statement included in the minutes of a Council meeting, the Council and the Commission pointed out that Article 1(3)(a) of the Directive presupposes the transnational provision of services by an undertaking on its own account and under its direction, under a contract concluded between the undertaking providing the services and the party for whom the services are intended and posting as a part of such provision of services. Accordingly, where the aforementioned conditions are not met, workers who are normally employed in the territory of two or more Member States and who form part of the mobile staff of an undertaking engaged in operating professionally on its own account international passenger or goods transport services by rail, road, air, or water do not fall within the scope of Article 1(3)(a). (Cabotage, on the other hand, would be covered).
For an extensive overview, see Van Overbeeke (2018), pp. 522 et seq. and also Mankowski (2017), pp. 273 et seq.
- 679.
See Article 9(1)(b) of Directive 2014/67.
- 680.
Directive (EU) 2018/957.
- 681.
See paras 5 and 7 of Directive 2020/1057 and also para 35 of CJEU 1 December 2020, Federatie Nederlandse Vakbeweging v Van den Bosch Transporten BV e.a., C-815/18, ECLI:EU:C:2020:976.
- 682.
See also Mankowski (2017), p. 285.
- 683.
Title VI on transport (by which, according to Article 100 TFEU, is meant transport by rail, road, and inland waterway).
- 684.
Art. 58 TFEU.
- 685.
Art. 92 TFEU.
- 686.
Art. 93 TFEU.
- 687.
Art. 95 TFEU.
- 688.
For road haulage, Regulation (EC) 1072/2009 applies, for coach and bus services Regulation (EC) 1073/2009, for international carriage of goods and passengers by inland waterway Regulation (EWG) 3921/91 and 1356/96, for air transport Regulation (EC) 1008/2008, and for rail transport Directive 2012/34/EU.
- 689.
See CJEU 1 December 2020, Federatie Nederlandse Vakbeweging v Van den Bosch Transporten BV e.a., C-815/18, ECLI:EU:C:2020:976, para 40.
- 690.
For example, Council Directive 2000/79/EC of 27 November 2000 concerning the European Agreement on the Organisation of Working Time of Mobile Workers in Civil Aviation and Council Directive 2005/47/EC of 18 July 2005 concerning working time in the railway sector are based on the social law provision of Article 139 TFEU (dialogue between social partners). Directive 2002/15 on working time in the road transport sector is based on both Article 71 of the transport policy and the social law Article 137. Directive 1999/95/EC of the European Parliament and of the Council of 13 December 1999 concerning the enforcement of provisions in respect of seafarers’ hours of work is based exclusively on the transport policy (Article 80). The transport specific posting Directive 2020/1057 is also based on Article 91 of the transport policy.
- 691.
See Knauff (2019), pp. 1336–1337.
- 692.
CJEU 1 December 2020, Federatie Nederlandse Vakbeweging v Van den Bosch Transporten BV e.a., C-815/18, ECLI:EU:C:2020:976, para 33.
- 693.
- 694.
See Art. 8 (of Regulation (EC) 1072/2009 of the European Parliament and of the Council of 21 October 2009 on common rules for access to the international road haulage market (2009) OJ L300.) which aims to prevent cabotage from becoming a permanent rather than a temporary activity. A haulier is therefore not allowed to enter a country without any cargo and then carry out cabotage operations.
There is one exception to the latter rule. If a haulier has completely unloaded an international cargo, he may make a domestic journey, i.e. cabotage, in another Member State with his empty lorry. He may carry out a maximum of three cabotage operations and these operations must have been carried out in three different Member States. These cabotage operations must be carried out within a period of 7 days. The cabotage operation must be carried out within 3 days after the lorry has entered the country empty.
To prevent the abuse of systematic cabotage, a ‘cooling-off period’ of 4 days is introduced before further cabotage operations can be carried out in the same country with the same vehicle. A Member State may apply these rules to road sections of combined transport on its territory. (See Art. 8 (2)(a): ‘Road transport undertakings are not allowed to carry out cabotage operations, with the same vehicle, or, in the case of a coupled combination, the motor vehicle of that same vehicle, in the same Member State within 4 days following the end of its cabotage operation in that Member State.’).
- 695.
This raises questions of conformity with Art. 5 of Regulation (EC) 1071/2009.
- 696.
CJEU 16 December 2010, Heiko Koelzsch v État du Grand Duchy of Luxemburg, C-29/10, ECLI:EU:C:2010:789.
- 697.
See also extensively Van Overbeeke (2018), p. 119.
- 698.
They don’t even really return to their starting point but are simply picked up by a van and taken home (see Van Overbeeke (2018), p. 119.). Another common construction involves an undertaking from Member State A relocating its activities to a post office box in Member State B where it registers lorries which are then immediately driven back to State A to transport local trailers (see also on this Vantilborgh (2015), pp. 199–202.).
- 699.
For instance, the Council observed that the rules on posting of workers laid down in Directive 96/71/EC and those on administrative rules laid down in Directive 2014/67/EU are not applicable to the highly mobile road transport sector without problems. Uncoordinated national measures for the application and enforcement of the provisions on the posting of workers in the road transport sector create legal uncertainty and a high administrative burden for undertakings established in another EU Member State. As a result, the freedom to provide cross-border road transport services is unduly restricted, with negative side effects on employment and the competitiveness of transport undertakings. Administrative requirements and control measures must be harmonised in order to avoid unnecessary delays for carriers (para 18 of Directive 2020/1057).
- 700.
See above, this chapter, Sect. 3.2.3.4.2.
- 701.
Art. 4(3)(d) of Directive 2014/67.
- 702.
The working party which drew up the Directive provided that drivers of professional transport undertakings and mobile staff of press, radio, television, or film undertakings could not be regarded as posted personnel within the meaning of this provision, precisely because there is no agreement between the undertaking providing the service and the recipient of the service. See Jorens (2009b), p. 9 (C) and Houwerzijl (2005), p. 123.
- 703.
Van Overbeeke (2018), p. 545.
- 704.
Directive 2018/957 (Article 3(3)) provides that the application of this Directive shall be deferred until a specific directive for the road transport sector becomes applicable (i.e. from 2 February 2022).
- 705.
See SWD (2017) 186 final.
- 706.
The proposal for a Directive of the European Parliament and the Council amending Directive 2006/22/EC as regards enforcement requirements and laying down specific rules with respect to Directive 96/71/EC and Directive 2014/67/EU for posting drivers in the road transport sector points out that the provisions and administrative rules on posting are not adapted to the highly mobile nature of the work of drivers engaged in international road transport. This creates a disproportionate regulatory burden for operators and unjustified obstacles to the provision of cross-border services. COM (2017) 278 final, 2.
- 707.
See also recital 9 of the Preamble of Directive 2020/1057.
- 708.
COM (2017) 278 final. In particular, if the drivers are posted to carry out those activities on their territory for a period that is shorter than, or equal to, 3 days in one calendar month (p. 17). Another notable difference was that the Commission only intended to regulate the application of the provisions of points (b) and (c) being minimum wages and holidays, a restriction that was subsequently abandoned. The European Parliament, however, changed tack by moving away from quantification. In order to ensure smooth implementation and enforcement, and considering the administrative burden that companies face (Draft document A8-0206/2018 of the European Parliament, proposal new Article 2 and 2a), another solution is being sought that looks at the form of transport whereby the duration is put aside and whereby posting thus applies immediately from the first day.
- 709.
To which Directive 96/71 continues to apply, although it is not always appropriate.
- 710.
Article 1(2) of Directive 2020/1057.
- 711.
The Van den Bosch case dealt precisely with a case of posting that was not covered by Article 1(3)(a) but instead was covered by Article 1(3)(b) (intra-group transfer of staff). (CJEU 1 December 2020, Federatie Nederlandse Vakbeweging v Van den Bosch Transporten BV e.a., C-815/18, ECLI:EU:C:2020:976.)
- 712.
See para 25 of the Proposal. This approach also avoids the difficulty of determining the preferred number of days or hours (see e.g. Council document 14802/18, p. 6).
- 713.
See CJEU 1 December 2020, Federatie Nederlandse Vakbeweging v Van den Bosch Transporten BV e.a., C-815/18, ECLI:EU:C:2020:976, para 49.
- 714.
Article 1(3) of Directive 2020/1057.
This covers the carriage of goods under a contract of carriage from the Member State of establishment to another Member State or a third country, or from another Member State or a third country to the Member State of establishment. A driver engaged in a bilateral transport activity shall be treated in the same way if he carries out one loading and/or unloading activity in those Member States or third countries through which the driver transits, provided that the driver does not load and unload in the same Member State. Where a bilateral transport operation, which started in the Member State of establishment and did not involve any additional activity, is followed by a bilateral transport operation to the Member State of establishment, the exemption shall apply to a maximum of two additional loading and/or unloading operations under the conditions laid down above (Art. 1(3) and (4)), as soon as the smart tachograph scheme can be invoked. For example, if a company transports goods from Belgium to Italy but picks up goods in Germany en route to unload them in Italy, this is not a case of posting.
As regards passenger transport, this shall mean: drivers who carry out international passenger transport operations on an occasional or regular basis, are not considered to be posted for the purposes of Directive 96/71/EC if: they carry passengers from the Member State of establishment and set them down in another Member State or in a third country; or if they carry passengers from a Member State or a third country and set them down in the Member State of establishment; or if they carry passengers and set them down in the Member State of establishment in order to make local excursions (Article 1(4)). Shall be treated in the same way: a driver engaged in a bilateral transport activity and who, in addition, carries and/or sets down passengers once in a Member State or a third country crossed, provided that the driver does not offer passenger services between two locations within the Member State crossed. The same applies to the return journey (as soon as the smart tachograph scheme can be invoked).
- 715.
Article 1(5). In the latter case of transit transport, there is no connection with the work because the driver travels through this State without loading/unloading cargo and without embarking or disembarking passengers. The mere fact that someone stops in the transit State, for example for hygienic reasons, does not change this (see para 11 of Directive 2020/1057). After all, this does not concern a work activity.
- 716.
Article 1(7).
- 717.
Which then again depends on how the scope of these priority rules is defined in national law.
- 718.
The Van den Bosch case involved transporters who mainly operated from the Netherlands to other Member States. (CJEU 1 December 2020, Federatie Nederlandse Vakbeweging v Van den Bosch Transporten BV e.a., C-815/18, ECLI:EU:C:2020:976.)
- 719.
As in the case of Directive 96/71, protection against competition from third-country operators is expressly provided for (Article 1(10)). Transport undertakings established in a third country may not be given more favourable treatment than undertakings established in a Member State, even if they carry out transport operations in the framework of bilateral or multilateral agreements granting access to the market of the Union or parts of it.
- 720.
Van Overbeeke (2019), p. 93. Van Overbeeke also points out that ‘many a lawyer will have to read the regulation a few times to fully grasp what it says, let alone how a civil servant on the road should understand and enforce it’.
- 721.
Art. 1(8).
- 722.
See Art. 1(11) of Directive 2020/1057 The posting declaration shall include the following information: (1) the identity of the road transport operator, at least where available in the form of the number of the Community licence; (2) the contact details of a transport manager or other contact person in the Member State of establishment acting as an intermediary with the competent authorities of the host Member State in which the services are provided and with whom documents or messages are exchanged; (3) the following information concerning the posted driver: the identity of the driver, the address of the place of residence of the driver and the number of the driving licence; (4) the date of commencement of the driver’s employment contract and the law applicable to it; (5) the planned dates of commencement and termination of the posting; (6) the registration plates of motor vehicles; (7) the type of transport services: goods, passenger or international transport, cabotage. It is also compulsory for the driver to keep and make available, on paper or in electronic form, when requested during a roadside check: (1) a copy of the declaration of posting, submitted via IMI. In addition, there is an obligation on the road transport operator to provide via the public IMI interface, after the period of posting, at the direct request of the competent authorities of the Member States in which the posting took place, copies of the documents referred to in points (b); (2) (consignment note) and (1) (tachograph data), as well as documentation on the remuneration of drivers posted in relation to the period of posting and the employment contract or an equivalent document within the meaning of Article 3 of Council Directive 91/533/EEC 20, time schedules concerning the driver’s work and proof of payment.
The operator shall send the documentation via the public IMI interface within 8 weeks after the date of the request. If the operator fails to submit the requested documentation within the set deadline, the competent authorities of the Member State where the posting took place may, by means of IMI, request assistance from the competent authorities of the Member State of establishment, in accordance with Articles 6 and 7 of Directive 2014/67/EU. If such a request for mutual assistance is introduced, the competent authorities of the Member State in which the undertaking is established shall have access to the posting declaration and other relevant information submitted by the undertaking via the public IMI interface.
The competent authorities of the Member States in which the undertaking is established shall ensure that the documents requested by the competent authorities of the Member States in which the posting took place are provided via IMI within 25 working days of submission of the request.
- 723.
As defined within the meaning of Art. 9(1) and (2) of Directive 2014/67.
- 724.
Amendment of Art. 5 of Regulation 1024/2012.
- 725.
As a result, several of these Central and Eastern European States joined forces in a single block (Poland, Hungary, Bulgaria, Estonia, Lithuania, Malta, Cyprus, Latvia, Romania) and proceedings were brought before the Court of Justice by some of these Member States against the mobility package, citing various elements. It was pointed out that the obligation for lorry drivers to return to their country of origin every 4 weeks would have a negative impact on the environment because there would be an unnecessarily increased intensity of transport (with empty lorries). It would also infringe on the driver’s freedom to choose the rest period. In addition, the exclusion of bilateral transport from the Posting of Workers Directive is considered discriminatory in relation to cabotage as the work carried out is the same. (See Ellex (2020). Euractiv (2021). Supron (2020)).
- 726.
See para 6 of Regulation (EU) 2020/1055 of the European Parliament and of the Council of 15 July 2020 amending Regulations (EC) No 1071/2009 (EC) No 1072/2009 and (EU) No 1024/2012 with a view to adapting them to developments in the road transport sector (2009) OJ L249.
- 727.
Article 3 of Regulation 1071/2009.
- 728.
Article 5 of Regulation 2020/1055.
- 729.
See Article 5(1) of Regulation 2020/1055.
- 730.
CJEU 20 December 2017, Vaditrans, C-102/16, ECLI:EU:C:2017:1012, para 48.
- 731.
See new Article 8(8): ‘The regular weekly rest periods and any weekly rest of more than 45 hours taken in compensation for previous reduced weekly rest shall not be taken in a vehicle. They shall be taken in a suitable and gender-friendly accommodation with adequate sleeping and sanitary facilities. Any costs for accommodation outside the vehicle shall be covered by the employer.’ In addition, the Court made it clear that this regulation (Article 10(1)) does not in principle preclude a road haulage undertaking from granting a premium calculated on the basis of savings made by reducing fuel consumption in relation to the distance travelled. However, such a premium would be contrary to that provision if, instead of being exclusively linked to fuel savings, it rewarded those savings on the basis of the distance travelled and/or the amount of goods transported in a way which encourages the driver to engage in driving behaviour likely to endanger road safety and/or encourages him to infringe Regulation No 561/2006 (see CJEU 8 July 2021, Rapidsped, C-428/19, ECLI:EU:C:2021:548, para 63.). As an example, reference is made to a standard which is defined in such a way that the granting of a flat-rate premium is not made conditional upon greater fuel savings in relative terms (for instance, where the total annual consumption is at least 5% below the ‘standard’ level), but upon absolute consumption over a specified distance (for example, through the payment of a premium of EUR 50 per 100 litres of fuel saved) (see para 70 of the conclusion of the Advocate General in CJEU 8 July 2021, Rapidsped, C-428/19, ECLI:EU:C:2021:371).
- 732.
In this regard, the Commission highlights the consequences of liberalisation in the sector. A number of reports argue that the sector is faced with decreasing profit margins driven by growing competition from EU-13 based operators, which have contributed to strong downward pressure on prices of services and subsequently on drivers’ wages and other working conditions. On the trunk lines of European corridors, reported (2015) freight rates have fallen sharply to as low as €0.70 per vehicle-kilometre or less. This corresponds to a reduction of some 30% compared to the previous market prices (2010–2011) of about €0.90–1.00 per km (SWD (2017) 186 final, 9 and see pp. 10–11.): The market-based differentials described above give rise to increasingly fierce cost-based competition. In combination with legislative loopholes and enforcement deficiencies, it creates incentives for unfair business and employment practices (SWD (2017) 184 final, 25.) (e.g. letterbox companies, illegal cabotage, bogus self-employment, downward pressures on rest periods and pay, etc.) applied by certain operators and for protectionist national measures (e.g. imposing sanctions for weekly rest in the vehicle, disproportionate application of national measures on minimum wage to foreign operators, national restrictions on cabotage) being adopted by some Member States in response. Social and competition issues are clearly interdependent, because business practices that allow operators to gain unfairly a competitive advantage often deprive drivers of their fundamental rights of social protection and adequate working conditions, including minimum rates of pay. On the other hand, the smooth functioning of the internal road transport market is hampered by illegal practices such as letterbox companies, illegal cabotage, illicit employment arrangements including false self-employment, and abuses of the road transport social rules. All these obstruct fair access to the market for operators and fair working conditions for drivers, including adequate pay.
- 733.
See in particular Art. 5(1)(b) of Regulation 2020/1055; see also 5424/20 ADD 1 amendment Art. 5. Setting a clear minimum interval for the return of the vehicle also helps to ensure that these vehicles can be properly maintained with the technical facilities in the Member State of establishment and simplifies checks. This return cycle also coincides with the obligation for the driver to be able to return home at least every 4 weeks, so that both obligations can be met by the driver returning with his vehicle at least every second 4-week cycle (para 8).
The preamble does point out, however, that this should not require a certain number of transport operations to be carried out in the Member State of establishment or otherwise restrict entrepreneurs from providing services throughout the internal market.
It would therefore appear that, in part through this obligation to return, there is a desire to address the problems arising from so-called ‘nomadic driving’ (whereby workers spend months at a time in countries other than their home countries and actually live and sleep in their cabs during these long periods).
- 734.
Regulation 1214/2011 on the professional cross-border transport of euro cash goes beyond this requirement since it states (Article 4(2)(a)) that the company is approved to carry out CIT transport in its Member State of origin, or if there is no specific approval procedure for CIT companies in that Member State that goes beyond the general rules for the security or transport sector, may provide evidence that it has regularly carried out CIT transport for at least 24 months in its Member State of origin prior to the application, without infringing that Member State’s national law applicable to such activities.
- 735.
Article 5(2) of Regulation 2020/1055.
- 736.
Article 6(1)(a) and (b).
- 737.
Although Art. 6(2)(a) of Regulation 1214/2011 provides that the sanction must not be disproportionate; see Article 22 for sanctions.
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Jorens, Y. (2022). Cross-Border Employment and Labour Law: The Legal Framework. In: Cross-border EU Employment and its Enforcement. Springer, Cham. https://doi.org/10.1007/978-3-031-18854-1_3
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