EU guidelines and rules - comparative labour law

Improving the quality of work and working conditions:

- High quality of work goes hand in hand with high productivity and competitiveness.

Free movement of workers

Art 45 TFEU:

1. Freedom of movement for workers shall be secured within the Union.

2. Such freedom of movement shall entail the abolition of any discrimination based on nationality

between workers of the Member States as regards employment, remuneration and other conditions

of work and employment.

3. It shall entail the right, subject to limitations justified on grounds of public policy, public security

or public health:

(a) to accept offers of employment actually made;

(b) to move freely within the territory of Member States for this purpose;

(c) to stay in a Member State for the purpose of employment in accordance with the provisions

governing the employment of nationals of that State laid down by law, regulation or administrative

action;

(d) to remain in the territory of a Member State after having been employed in that State, subject to

conditions which shall be embodied in regulations to be drawn up by the Commission.

4. The provisions of this Article shall not apply to employment in the public service.

So, the free movement of workers means:

The abolition of any discrimination between nationals and foreigners belong to the EU. So,

- within the EU workers must be treated in the same way.

A worker can move to another EU country in order to accept an offer of employment but

- also to look for an employment.

You can stay in another country to work

- Also non-active people (retired people) can move to another EU country

-  but there is one main difference: workers enjoy better conditions than no active citizens:

because they have immediately the right of social assistance provided by the host state. So,

the same social assistance provided by a member state to national is also for no-national

citizens.

So, Workers have immediately the right of social assistance

 If I am a job seeker (which means that I am registered in some specific offices): the country

 will not give me immediately the right for social assistance. The country can fix a certain

min period in order to obtain it.

If you lose your job but you are still considered as a worker:

 • When you cannot work because you are silly  you still receive the benefits

• When you lose involuntary your work after having been employed for more than one

year or because of the end of your fix term contract you have all the benefits

• If you are doing vocational training after losing the job  you are a worker and you

receive the benefits

During an internship you are not a worker



One of the main concern of some countries is about the welfare tourism of workers: people move

from a low protective country to a high protective country in order to get benefits.

Anti-discrimination rules

(Regulation n. 492/2011)

people have the same priorities as national a member state cannot give a priority to its

- citizens in order to find a job. Exception: public servants in public employment: member

states can reserve some public places only to nationals, because they are of key importance

for the country ( bank of Italy, Army..).  Obviously they cannot do the same for nursery or

doctor position;

The right to be treated as a national in respect of any conditions of employment and work

- (wage, dismissals, etc.)

the same social and tax advantages as national workers**

- the same conditions of access to training in vocational schools and retraining centres.

- equality of treatment as regards membership of trade unions and the exercise of union

- rights

the same rights and benefits accorded to national workers in matters of housing, including

- ownership of the housing.

** ECJ included between the social advantages for EU workers also subsidized loans for low-

income families; government subsidies aimed to grant livelihood.

General exceptions regarding the free circulation of workers

Public policy or public security:

1. if you are a threat (for example a terrorist) you are not free to circulate in the EU

if you have been in jail, you are not automatically a threat for a country

Public wealth:

2.  if you have some contagious virus, you can be blocked

Freedom to provide services

Any economical operator (self employed, company) may offer services on a temporary basis in

another EU state.

The right of establishment

It is related to moving the company to another country. (no temporary)

Freedom to provide services and the right of establishment should be free, without restrictions.

However, member state often provide some restrictions. Indeed we have the Gebhard formula,

which is the one used by the European court of justice to understand if a restriction is against the

economic freedom or not.

One of the famous case in which the gebhard formula has been applied is:

 The case of a German lawyer who wanted to practise in Italy. The right of establishment provide

that he was free to do it. Italy at that time required to foreign lawyers to attend some courses and

pass an exam in order to exercise in Italy. From the lawyer point of view this was a violation of the

right of establishment. So the EU court of justice was called in order to scrutinize the case.

It should respect the four conditions of the gebhard formula in order to be law full:

The restriction must pursue a legitimate objective : it should not be a discrimination. In this

1. case, the Italian requirements were not seen as discriminations. ( it is a form of protection:

Italy wants prepared lawyers able to defend their clients)

Was there a reason of public interest ? : yes

2. Was these measures suitable for securing the attainment of the objective ?  Italy wanted to

3. protect possible clients through courses and exams. These actions are suitable.

The measures should not go beyond what is necessary to attend the principle : there should

4. be a proportionality between the requirements of a member state and the objective of the

measure. The EU court of justice said that there was a disproportion between the training

and the objective.

So Italy behaviour was not law full Italy had to change something.

Freedom to provide services

The right to use posted workers

- Posted workers are those workers that a company sends to another state (temporary) to

provide a service. In general, we refer to labour intensive works with the idea of using a

foreign company instead of a national one because it has lower prices.

Suppose that they come from Romania and they go to Germany are they pay according to

the German or Romania law?

The EU directive first defines posted workers as: workers that for a limited period of time

work in another country, different from the country in which they normally work( note that

nationality does not matter we are interested in where they normally work).

We can have posted workers in three different situation:

• Posted to the client: my client is a German company who wants me to do a

clean services my workers are posted to the client(who has nothing to do

with me)

• Posted to host company or establishment: when my Italian company owns

another company in Germany and I send my workers to it

• Transnational agency work when a temporary agency work hires a worker

in Italy and send him to Germany

There is no posting when the host undertaking hires a worker. i.e. When my company sends me to

the German company, and the last one hires me. In this case, I am a simple worker and the free

movement of workers apply.

The directive (96/71) says: they should benefit from the host state protection only for the hard

nucleus of right, which are:

Working time

- Minimum paid annual holiday

- Minimum wage

- Health and safety

- Pregnancy

- Equal treatment

- No discrimination

-

(While, for example, dismissal rules are applied according to the Romanian law)

In our example German labour law applies.

Anyway, if the home state law is more favourable, it applies. (i.e. if a worker from Germany is

posted in Romania we will apply the German standard).

Some issues related to posted workers:

When the EU was extended to include many Eastern Europe countries, the post of workers

- became the principal channel of west migration. New member states, at that time, set

temporary restrictions to migration. A way to avoid these restrictions was to use the posting

of workers: the polish worker instead of moving to the UK to work, was sent to the UK by a

Poland company. Today this problem is not so much relevant;

Competition in labour intensive sectors from Eastern Europe. Using the freedom to

- provide services, many companies established in eastern countries can provide services in

western countries at a very cheaper price (because of lower wages and work protections).

How is it possible? As they have to respect the directive? They can because they only have

to respect the minimum wage (which is usually very low compared with the average labour

cost of a country).

Today it is a relevant problem indeed we want to know if it possible for a given eu country or a

given eu country trade union to impose more protection than those included in the so-called

hard nucleus.

We wonder:

Can a country or a trade union impose protection beside the hard nucleus (which means

- other protection) or impose higher protections (above)?

Is the hard nucleus a floor of right or a ceiling?

- Is the directive ( 96/71) providing some examples of rights and then the member states can

- improve these rights(labour law directive) or it is a free movement of services directive(=

the directive wants to grant the freedom of movement as much as possible which means:

less rights, more circulation)?

Western countries tend to say that the hard nucleus is a floor of rights whereas the eastern countries

tend to think in an opposite way.

above

HARD NUCLEUS beside

Beside the hardnucleus

There is only one article which states: member states may provide terms and conditions of

employment on matters different from the one provided by the hard nucleus in case of public policy

provisions (=it is a genuine and sufficiently serious threat to a fundamental interest of society: very

difficult to occur, some cases may be: child labour, slavery..).

Above the hardnucleus

There are two very interesting cases:

Laval case

Starting from may 2004, Laval (Litvanian company) posted around 35 workers to Sweden to

- work on building sites operated by Baltic (Swedish company owned by Laval), for the

purpose of the construction of school premises in Vaxholm.

Swedish trade unions required Laval to sign collective agreement providing working

- conditions “beside” and “above” the hard nucleus of PWD.

Laval refused, so Trade Unions blocked (‘blockad’) Vaxholm building site (no workers and

- vehicles could enter the site).

Laval asked the police for assistance but they were not allowed to inte