This thesis guides the reader through the most important aspects of current European labour law in relation to posted workers. It starts with basic definitions and provides answers to questions of jurisdiction and applicable law. The thesis then explains in detail the framework of the provisions guaranteeing a minimum level of safeguards and other rights to workers (Directive 96/71/EC) as well as the framework of the provisions applicable with regard to social security benefits and contributions (Regulation 883/2004). It explains the true impact of judgment Sähköalojen ammattiliitto ry on the applicable minimum wage and shows possible legal advantages of using posted workers over the domestic workforce. It furthermore explains how the practically important Internal Market Information System works and shows common ways of abuse and circumvention of current legislation. It divides these ways of abuse into the categories “Undesirable Legal Posting”, ”Questionable Practices”, “Fraud and Fake Postings”, “Letterbox companies” and “Bogus self-employment”, discussing three cases.
The most recent development in the area of posted workers is 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 (Enforcement Directive). The thesis explains the shortcomings of Directive 96/71/EC. It lists the novelties that the Enforcement Directive introduces and discusses their possible transposition into national law, their merits and insufficiencies. The thesis then takes a detailed look at one of these novelties, the new subcontracting liability in the construction sector. Finally, the thesis provides numbers of posted workers within the EU and specific countries, which enables the reader to put the economic impact of posted workers in perspective.
Table of Contents
3. Introduction
3.1. Background
3.2. Limitations
3.3. Aim
4. Definition of a posted worker
5. Jurisdiction in regard to posted workers
6. Applicable national law in regard to posted workers
6.1. Three-step system
6.2. Summing up
7. Overview of European Legislation applicable to posted workers
8. Directive 96/71/EC on the Posting of Workers
8.1. Legal Theory
8.2. Scope of application
8.3. A “hard core” of employment conditions – the host state´s overriding mandatory provisions
8.4. Effect of Article 3 of the Posting of Workers Directive in the opposite direction
8.5. Special treatment of temporary agency workers (“hired-out workers”)
8.5.1. Overview of different ways that Directive 96/71/EC influenced national laws
8.5.2. Procedure and Notifications in regard to the Posting of Workers
9. Judgment in Sähköalojen ammattiliitto ry and other CJEU judgments regarding minimum rates of pay
9.1. Minimum wage elements
9.2. Summing up
10. Regulation (EC) No 883/2004 on the coordination of social security systems
10.1. The Article 12 exemption for posted workers and its conditions
10.1.1. 24 months maximum
10.1.2. No replacement
10.1.3. Substantial activities
10.1.4. A direct relationship
10.1.5. Coverage under the sending state´s social system
10.2. Exceptions under Article 16 of Regulation (EC) 883/2004
10.3. Procedure and Notifications in regard to Regulation (EC) 883/2004
11. The Internal Market Information System (“IMI”)
12. Possible advantages of using posted workers instead of the local workforce
13. Abuse and circumvention of European legislation regarding the Posting of Workers
13.1. A brief overview
13.2. Case reports
13.2.1. Italy
13.2.2. Belgium I
13.2.3. Belgium II (Letterbox Company)
13.3. Details in regard to letterbox companies
13.4. Specific shortcomings of the Posting of Workers Directive 96/71/EC
13.4.1. Information available
13.4.2. Information available regarding national minimum wages
13.4.3. Cooperation between Member States as well as national control and monitoring measures
13.4.4. Unclear criteria in relation to the scope of application of the Posting of Workers Directive
14. Stepping up the enforcement of EU legislation on the posting of workers with Directive 2014/67/EU (The “Enforcement Directive”)
14.1. Indicators of a genuine posting
14.2. Monitoring and compliance
14.3. Subcontracting liability in the construction sector
14.4. Enhanced administrative cooperation
14.5. Improved access to information
14.6. A detailed look at the new subcontracting liability in the construction sector
15. The number of posted workers within the European Union
16. Conclusion
Objectives & Core Topics
This thesis examines the legal landscape of posted workers in the European Union, focusing on the intersection between social security coordination and labor rights protections. It aims to clarify the impact of current legislation, identify systemic abuses, and analyze the efficacy of the new Enforcement Directive (2014/67/EU) in addressing these challenges.
- The regulatory framework governing posted workers (Directive 96/71/EC and Regulation 883/2004).
- Jurisdictional rules and the application of home vs. host state labor laws.
- Methods of abuse, including letterbox companies, bogus self-employment, and fraudulent subcontracting.
- The operational role of the Internal Market Information System (IMI) in enforcing labor standards.
- The impact and limitations of the new subcontracting liability in the construction sector.
Excerpt from the Book
13.3. Details in regard to letterbox companies
In his report on the revitalization of the internal market, Mario Monti, a previous European Commissioner, emphasized that the combat against letterbox companies is one of the key issues in strengthening workers and fighting against the abuse of their rights.
The CJEU has qualified companies as “creatures of national law”. Companies can only exist because the national laws of Member States allow them to exist. Companies are confined by these national rules that they base their existence on. Member States are free to impose legal requirements on companies, for instance regarding their place of registered office or headquarters.
It is therefore up to the Member States to introduce national legislation that prohibits the use of companies as letterbox companies. The Member States could require companies to have a genuine establishment in the state where their registered office is. If a company does not meet the requirement of a genuine establishment, national laws could deprive it of its legal status. This is however “seldom done, and consequently it is relatively easy to set up a letterbox company in the EU”. Many Member States do not require companies to have a substantial link to the state of their incorporation.
Chapter Summaries
3. Introduction: Provides the background and limitations of the thesis regarding European labor law and the posting of workers.
4. Definition of a posted worker: Defines the criteria for a posted worker and clarifies the distinction between temporary posting and migrant workers.
5. Jurisdiction in regard to posted workers: Outlines the rules for legal action and jurisdiction in disputes involving posted workers.
6. Applicable national law in regard to posted workers: Explains the three-step system used to determine the applicable law for employment contracts in cross-border situations.
7. Overview of European Legislation applicable to posted workers: Lists the primary EU directives and regulations governing labor and social security entitlements for posted workers.
8. Directive 96/71/EC on the Posting of Workers: Analyzes the legal theory, scope, and the “hard core” of employment conditions guaranteed to workers.
9. Judgment in Sähköalojen ammattiliitto ry and other CJEU judgments regarding minimum rates of pay: Examines recent case law clarifying the definition of minimum wages and allowed elements.
10. Regulation (EC) No 883/2004 on the coordination of social security systems: Discusses the exemption criteria for maintaining home-state social security coverage during a posting.
11. The Internal Market Information System (“IMI”): Describes the software system utilized by Member States for administrative cooperation and information sharing.
12. Possible advantages of using posted workers instead of the local workforce: Explores the economic incentives for using posted workers within the existing legal framework.
13. Abuse and circumvention of European legislation regarding the Posting of Workers: Categorizes and details common forms of exploitation, including case reports on fraudulent practices.
14. Stepping up the enforcement of EU legislation on the posting of workers with Directive 2014/67/EU (The “Enforcement Directive”): Reviews new measures for enforcement, monitoring, and subcontracting liability.
15. The number of posted workers within the European Union: Presents statistical data and trends regarding the volume and economic relevance of posted workers.
16. Conclusion: Synthesizes the main findings and provides a critical outlook on the limitations of the current legislative framework.
Keywords
Posted workers, European Union, Labor law, Social security, Directive 96/71/EC, Enforcement Directive, IMI system, Minimum wage, Letterbox companies, Bogus self-employment, Subcontracting liability, Jurisdictional rules, Social dumping, Fair competition, Internal Market.
Frequently Asked Questions
What is the core subject of this thesis?
The thesis explores the regulatory framework governing the posting of workers within the EU, specifically analyzing the balance between the promotion of services and the protection of workers' labor and social security rights.
What are the primary themes addressed?
Key themes include the application of national labor laws, social security exemptions under Regulation 883/2004, the definition of minimum pay, common forms of abuse by employers, and the enforcement mechanisms introduced by Directive 2014/67/EU.
What is the primary aim of this work?
The aim is to provide a comprehensive analysis of current EU legislation, identifying its shortfalls, the impact of recent case law, and how new directives attempt to combat systemic abuse.
What scientific method is employed?
The research employs a legal analysis methodology, utilizing EU directives, court judgments from the CJEU, and reports from European labor research institutes to evaluate the effectiveness of existing and new regulations.
What topics are covered in the main section?
The main sections cover definitions, jurisdictional conflicts, the "hard core" of employment rights, the operation of the IMI system, social security exemptions, and detailed analyses of employer malpractices.
Which keywords define this work?
The work is characterized by terms such as posted workers, Directive 96/71/EC, Enforcement Directive, letterbox companies, social security coordination, and labor dumping.
What does the thesis conclude about the new subcontracting liability?
The author argues that while the Enforcement Directive introduces a welcome liability mechanism in the construction sector, it is limited in scope and may not sufficiently deter abuse because it does not hold the entire supply chain accountable.
How does the IMI system contribute to enforcement?
The IMI system serves as a digital bridge between Member States, allowing for rapid exchange of information and verification of employer legitimacy, which is crucial for monitoring labor conditions and identifying fraudulent postings.
- Quote paper
- Matthias Strohmayer (Author), 2015, Posting of Workers within the European Union. The Enforcement Directive 2014/67/EU and shortfalls of existing legislation, Munich, GRIN Verlag, https://www.grin.com/document/339303
