Examen Flashcards
Which case gives criteria for substantional activities in member state of posting undertakings?
Which are these criteria?
Arrest Fitzwilliam
- Seat of undertaking
- Where the administrative staff is working
- Where are contracts with the workers concluded (thus where they are recruited)
- “Usually” performing services in the member state doesn’t mean “mainly” performing activities in the member state (volume of work in both states doesn’t matter)
- List is not exhaustive, must be adapted to each specific case
Which article of Regulation 883/2004 rules simultaneous activities in more member states?
Article 13
Which article of Regulation 883/2004 rules the general rules of the applicable law of social security?
Article 11
Case Arblade and Leloup
THE RULE OF REASON TEST USED BY THE COURTS IN POSTING OF WORKERS- Is the measure justified and is it Proportionate?
Summary of the Facts of the case in Arblade and Leloup
Arblade and Leloup concerned the obligation by national law for the employer to draft labour and social documents and keep a special social register of the employees in the host MS which was Belgium. Arblade and Leloup were two French nationals who carried out construction work and deployed workers to Belgium. In the course of checks, the Belgian Social Law Inspectorate required them to produce several social documents as required under Belgian Legislation and the two employers considered that they were not obliged to produce such a document because these were in contravention to EU Law.
Summary Court’s Judgment
-The requirement was an evasive one because similar documents were found in the Home MS so Belgian authorities could as well have asked the authorities of France which was the home MS to send the documents.
_ These employees and employers were not entering the Labour markets of Belgium so they should not be subjected to stringent requirements.
_ Bottom line Belgium you infringed the provisions of Art 56 of the TFEU on the freedom to provide services.
Case Finelarte
Secondment from Portugal to Germany (construction); German expected payment of holiday pay via local German fund
- Art. 45 TFEU does not apply to posted workers: they are not part of the labor market of the host country. So no automatic equal treatment with employees in the host country
- Rejection by the Court of the aim to protect German businesses from cheaper foreign companies: a purely economic motive is not acceptable as justification
- Is acceptable as legitimate aim: “the protection of workers” by granting them a real advantage which contributes significantly to their social protection. National court to examine this “additional real advantage”
Case Manpower
Manpower is a French temporary work agency sending posted workers to Germany. On the first day of employment worker suffers from an accident working on the site. The French social security cas doesn’t want to pay because they were notified before the posting and because Manpower doesn’t send the employees to Germany to work, but to put them at the disposal (and authority) of another company.
The following elements of the employer relationship are treated in the case
Who pays the salary? Manpower
Who can dismiss the employee? Manpower
To who does the employee answer for misconduct? Manpower
To who is the employee indebted? Manpower
On behalf of which undertaking performs works temporarily in another undertaking (in another member state)? Manpower
From who does he receive instructions? The German company.
(In overall there seems to be a difference in giving instructions, which are the details of the type work, and defining the nature of work, which determines the end of the provided service.)
(So authority doesn’t mean only: giving instructions)
Arrest Manpower
Manpower is a French temporary work agency sending posted workers to Germany. On the first day of employment worker suffers from an accident working on the site. The French social security cas doesn’t want to pay because they were notified before the posting and because Manpower doesn’t send the employees to Germany to work, but to put them at the disposal (and authority) of another company.
The following elements of the employer relationship are treated in the case
Who pays the salary? Manpower
Who can dismiss the employee? Manpower
To who does the employee answer for misconduct? Manpower
To who is the employee indebted? Manpower
On behalf of which undertaking performs works temporarily in another undertaking (in another member state)? Manpower
From who does he receive instructions? The German company. (In overall there seems to be a difference in giving instructions, which are the details of the type work, and defining the nature of work, which determines the end of the provided service.)
(So authority doesn’t mean only: giving instructions)
Case Mário Lopes da Veiga
Portuguese working on a shipping faring the Dutch flag, for annual leave residing in the Netherlands but having no residence permit, asking for a residence permit in the time of transitional period of entering Portugal in EU
Reasoning: question if da Veiga was already working under Dutch flag?
Definition worker in sphere of maritime transport: national of a member state employed on board a vessel from another member state must be considered a worker
Application of free movement in transitional period: as da Veiga was already employed in the Netherlands at the time of entering of Portugal, the transitional period doesn’t count for him
The question of outside the territory of a member state: if the legal relationship of employment can be located in the territory or retains a sufficient link with the territory (parameters in §1
Case C-60/93 Aldewereld
Applicable social security law for a Dutch resident working for a German undertaking posted in Thailand.
There is a sufficient link with the German employer, should be only under one European social security legislation, so German social security law is applicable and employee should not pay social contributions to the Netherlands
Case C-214/94 Boukhalfa
Algerian resident with Belgian nationality working in the German embassy of Algeria under German law
Reasoning
Plaintiff is under rules German law
Contract of employment was entered under German law
The German law makes a difference between posted staff and local staff. What concerns the local staff it makes a difference between staff of German nationality and staff of other nationalities. The first group works under German labour conditions, the latter group under local working conditions. This proves that Boukhalfa works under German law, even if in that law is stipulated that the Algerian working conditions are applicable.
Contract contains a clause giving German courts jurisdiction over disputes
Pension in German state social security system
Limited subject to German income tax
That the contract of employment is entered into and performed permanently in Algeria doesn’t matter
That Boukhalfa wasss resident in Algeria even before the contract, doesn’t matter
Arrest Fitzwilliam
An Irish temporary work agency provides services in the Netherlands by sending employees
Which social security legislation should be applied?
Discussions
Workers sent to the Netherlands worked mainly in agriculture and horticulture, while those working in Ireland worked in other sectors. The court reasoned that the sector doesn’t matter.
The case provides criteria to determine if there is a “substantial activity” for the posting undertaking in the sending state
Seat of undertaking
Where the administrative staff is working
Where are contracts with the workers concluded (thus where they are recruited)
List is not exhaustive, must be adapted to each specific case
“Usually” performing services in the member state doesn’t mean “mainly” performing activities in the member state (volume of work in both states doesn’t matter)
(in the slides is also written: no letterbox companies)
These criteria are repeated in the PWED article 4
Two conclusions
An undertaking posting temporary personnel from its own member state to another member state, must normally carry on its activities in the first state. That means that it habitually carries on significant activities in the sending state .
If the host state has doubts on the validity of the A1 it must contact the competent institution in the sending state, that institution must re-examine the certificate and if necessary, withdraw it.
In the case is reasoned that if the institutions do not reach an agreement, the question should be referred to the Administrative Commission and if that doesn’t suffice, to the court
Case C-215/01 Schnitzer
In Germany you need a skilled trader must do an examination to appear on the skilled trade register. A Portugese company carried out plastering work for the German company Schnitzer. In the first year the Portugese company wasn’t on the skilled trader list. This constitutes a restriction on the free movement of services because it delays, complicates or renders more onerous the provision of services in the host state. The ECJ had already ruled before that a company who posted workers for a short period to Germany was not obliged to come in the register, but the Portugese company in the Schnitzer-case worked in a repeated or more or less regular manner (after a year it also came on the list). The question was if the Portuguese company had to be considered as an establishment or a foreign company sending posted workers. The ECJ judged that he last was the case. In the slides: “depends on the continuity and periodicity of the work, but it can be a project for several years.
Reasoning
The fact that the activity is temporary does not mean that the provider of services may nog equip himself with the necessary form of infrastructure in the host state
Case C-31/2006 Commission versus Luxembourg
Luxembourg imposed working conditions on companies posting workers that goes far beyond the hard core provisions of the PWD. The argument of Luxembourg was public policy (article 10 of PDW).
The public policy can not be left tot he discretion of the member states, otherwise they could impose their whole labour law on the posting companies and that would be a too restrictive measure to free movement of services. The decision of the court in this case was that the public policy must be interpreted strictly because it is a derogation of the free movement of services. Public policy can only relate to matter that are a genuine and sufficient serious threat to society (overriding mandatory rules)
Case C-22/2008 Vatsouras
Greek citizen working in Germany
Not sure if he can receive social assistance as a job seeker
Case 384/10 Voogsgeerd
Jan Voogsgeerd signs contract in headquarters of Naviglobe in Antwerp for the Luxembourg undertaking Navimer. The law of the contract is Luxembourg.
For the working conditions, we have to look at the mandatory law. As in case Koelzsch, place of habitual goes before, place of business. Voogsgeerd starts always from Antwerp (from where principle). Place of business could also be a de facto business (as it seems here that Voogsgeerd gets his instructions from the company in Antwerp, he signed his contract there, …)
No conclusion, only definitions
