Posting of workers (labour law?) - fortunately we have a European Court of Justice

The European Commission has released its report to the European Parliament, the Council and the European Economic and Social Committee, on the application and implementation of Directive 2014/67/EU, on the enforcement of Directive 96/71/EC, concerning the posting of workers.

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Sep 28, 2019
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The European Commission has released its report to the European Parliament, the Council and the European Economic and Social Committee, on the application and implementation of Directive 2014/67/EU, on the enforcement of Directive 96/71/EC, concerning the posting of workers in the framework of the provision of services.

Beyond a genuine improvement of the PWD’s enforcement, the report reflects:

  • Confusion between labour law and the social security coordination regulations
  • Ignorance or “selective” application of EU law and ECJ case law, by certain Member States

1 Confusion between labour law and the social security coordination regulations

It appears that the (lack of) Portable Document A1, represents a major preoccupation of labour authorities in certain Member States. Such a preoccupation is somehow “covered” by Preamble (12) Directive 2014/67/EU. It must be however recalled that the lack of the certificate, does not represent a criterion laid down in Article 4 Directive 2014/67, and that is not an oversight.

Furthermore, the statistical data relating to the posting process are based on the definition of posting according to social security coordination rules, and that “creates some mismatches with definitions established by the Posting of Workers Directive”. Certain “mismatches” are eventually pointed out, however, frequent references to “social security” (15 times) and Portable Document A1 (four times), can only be a source of confusion. The directives in question, are not about social security.

Lastly, the report announces the publication of the Practical Guide on Posting (i.e. guide released on 25 September and covers posting rules under labour law). In context, the guide will be regularly updated, inter alia, concerning the application of the posting rules to mobile international transport workers, to codify the ECJ case law. Joined cases C-370/17 and C-37/18 (Vueling Airlines SA) are cited, in the same breath as C-16/18 (Michael Dobersberger) and C-815/18 (Van den Bosch Transporten B.V). Interesting how the posting rules under labour law, can be amended to integrate the expected ruling in Vueling! (unless the EU Commission has already adopted the French government position). In AFMB(C-610/18), the latter pleads for a convergence of the concepts of employer under labour law and social security coordination (while maintaining a clear distinction between these legal instruments). It was probably (more) relevant to cite the expected ruling in Bouygues travaux publics, Elco construct Bucarest (C-17/19). By its reference for preliminary ruling ,the French  Cour de Cassation, seeks to know whether in a situation in which the constitutive conditions of the posting are presumably not met(i.e. under social security coordination rules), but however, the ruling in Altun and Others (C-359/16) cannot be enforced, a portable document A1 binds the courts of the receiving Member State, not only as regards the social security system, but also as regards labour law.

2 Ignorance or “selective” application of EU law and ECJ case law

The report upheld that “Sixteen Member States (Austria, Bulgaria, Croatia, Czech Republic, Estonia, Hungary, Ireland, Latvia, Lithuania, Malta, Poland, Portugal, Romania, Slovakia, Slovenia and the UK) seem to apply provisions of subcontracting liability only to foreign service providers, while other Member States apply them or comparable ones equally to domestic as well as foreign service providers

A (non) qualified majority of Member States, disregard EU law and settled ECJ case law (see in that context the recent ruling of 26 September 2019 in UTEP 2006 C-600/18).

The report contains a detailed overview of the penalties for violating administrative duties relating to the posting of workers, and in context, recalls the rulings in Čepelnik (C-33/17) and Maksimovic and Others (joined cases C‑64/18, C‑140/18, C-146/18 and C-148/18).

However, the report ignores (many) other breaches of EU law and ECJ case law, by certain Member States.

The Practical Guide on Posting just released by the EU Commission, clearly addresses that the Directive applies even when the employment relationship was not established a certain time before the posting, “provided that the employment contract exists from the start to the end of the posting assignment” (2.18-emphasis added).

Pursuant to Article L 1261-3 French Labour Code, as amended by the Law 2018-771 of 5 September 2018, a posted worker must (inter alia), habitually carries out activities, on behalf of that employer, outside of the French territory.

To assess the reach of that amendment, the interpretation always  given by the French labour authority(the DIRECCTE) to the concept of posting, must be highlighted : employees posted, must have been employed ( habitually working for) the undertaking making the posting, in the home country, before the initiation of the posting, and/or will be employed (habitually working for) the undertaking making the posting, in the home country, after termination of the posting period.

The amendment is meant to enforce the legal arsenal in view of clearly excluding from the scope of the definition, employees which are hired in view of being posted, unless they will resume working for the same employer , in the home country, after termination of the posting period.

Point 2.5 of the said guide, contains clear reference to the possibility to post a third-country national, employed by an undertaking established in a Member State, under the same conditions as a Union citizen (the ruling in Van der Elst C-43/93 is cited).

Although, the related rights are derived from Art 56TFEU, and not from Directive 96/71/EC, if however invoked, we will quote a recent response received from a German Embassy, in relation to an application for a Van der Elst visa, lodged in the context of an intra-corporate posting of a third-country national, in view of attending a training, organised at the premises of a German undertaking : “The temporary services in case of a Van-der-Elst visa have to be rendered by the applicant to the receiving employer, not the other way around. I am not aware of any case law to the contrary. If you prefer the application to be declined in order to take legal recourse, please let me know. Otherwise, we will proceed with the solution I proposed” The solution proposed was a visa according to § 10 BeschV, international exchange of personnel (German labour law). Such a visa, requires approval of the Federal Employment Agency (authorisation of work).

Conclusion

Reading in conjunction, the report and the staff working document, the posting guide, Directive 2018/957/EU (amending Directive 96/71/EC), the proposed Macron’s “mobility package”, and Member States’ national legislations, the 14 new Members of the General Court of the European Union, are very much welcomed.

 

Go to the profile of Tanel Feldman

Tanel Feldman

Senior Partner , Immigration Law Associates

Immigration Law Associates provides services in the following areas of law: A- INTRA-EU MOBILITY -European Union Services: A1 Freedom to provide services : Social security and labour law -intra-EU mobility of employed and self-employed workers A2 Freedom of movement of persons : a) Citizenship of the Union and Member State nationality b) Entry and residence rights from the Citizens’ Rights Directive-c) Freedom of movement of workers B LEGAL MIGRATION- Belgium and Luxembourg : corporate and private immigration

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