Cross-border EU Employment and its Enforcement: An Analysis of the Labour and Social Security Law Aspects and a Quest for Solutions

Description

This book provides insights into the complex labour and social security framework of EU employment and its enforcement. Starting from an analysis of the various EU instruments and case law, it outlines the complicated legal framework, the practical problems involved, and ways to overcome them. In turn, the book puts the evolution of the framework into perspective, reviews the numerous modifications made over the years, and describes interpretation-related difficulties. Since the formation of the European Community 65 years ago, migration and the European labour market have evolved considerably through special patterns of (temporary) mobility such as postings, simultaneous work in several Member States and high mobility, thus leading to major questions about the applicable legal framework. The interplay between the free movement of persons and services has produced a complex system of rules. Which law applies when a person crosses a border: that of the host State (and to what extent should this State take into account the legal rules from the home State?) or that of the home State? Does the person crossing the border have any choice in the matter? The book subsequently analyses the penetration of EU (market) law into national systems of labour and social security law. The divergent solutions and views within labour and social security law are considered and discussed from a critical point of view. As the positive elements of the European story are at risk of being overshadowed by the negative consequences of the European construction – social dumping being the prime example – special attention is paid to the cooperation between inspection services and other stakeholders in order to guarantee efficient enforcement. The latter is more than just sanctioning, but also includes prevention and monitoring issues. The unique strength of this book is that it brings together all legal-technical aspects of cross-border employment and its enforcement in both labour law and social security law in a single volume. Readers will find a wealth of detailed and specialised information, helping them to understand the topic in depth. Accordingly, the book will be of interest to academics, practitioners, enforcement bodies, judiciary policymakers, advanced law students, and researchers seeking to understand the law in context. Preface Contents About the Author List of Figure List of Tables Chapter 1: Introduction Chapter 2: The EU and Social Rights and Market Competition: 65 Years of History 2.1 The Starting Point Overthrown 2.1.1 The Autonomy of the National Welfare State 2.1.2 The National Welfare State as Part of the Economic Integration 2.1.2.1 Regulatory Diversity as Trump Card 2.1.2.2 Mobility and the Choice of Legislation 2.1.2.2.1 Regulatory Mobility 2.1.2.2.2 Regulatory Competition 2.1.2.2.3 Social Rights and Regulatory Competition 2.1.2.2.3.1 Labour Law Protected from Economic Freedoms? 2.1.2.2.3.2 Labour Law in Competition with Economic Freedoms 2.2 Migration and Mobility in the European Union: 65 Years of Intra-European Migration 2.2.1 The Early Twentieth Century: From WWII to Labour Migration and Labour Mobility 2.2.2 Migration Motives `on the Move´ 2.2.3 The Share and Composition of Intra-European Migrants 2.3 Intra-EU-Mobility and the Legal Framework References Chapter 3: Cross-Border Employment and Labour Law: The Legal Framework 3.1 A Preliminary Question: The Competent Jurisdiction 3.2 Applicable Labour Law 3.2.1 Introduction 3.2.2 Rome I Regulation 3.2.2.1 Field of Application 3.2.2.2 The Rules on Conflict of Laws in Labour Law: A `Graduated´ Approach 3.2.2.2.1 The Starting Point: Freedom of Choice 3.2.2.2.2 No Choice: The Objectively Applicable Law 3.2.2.2.2.1 Place of Habitual Employment 3.2.2.2.2.2 Place of Establishment of the Employer 3.2.2.2.2.3 Temporary Change of Place of Employment: Posting 3.2.2.2.3 Corrective Measures 3.2.2.2.3.1 All Connecting Factors in One Country 3.2.2.2.3.2 The Principle of Favourability 3.2.2.2.3.3 Escape Clause 3.2.2.2.3.4 Application of the Rules of Precedence: Overriding Mandatory Provisions 3.2.2.2.3.5 International Public Policy 3.2.2.2.4 A Particular Challenge for the Conflict Rules: The Digital Revolution 4.0 3.2.2.2.4.1 A Changing Labour Market 3.2.2.2.4.2 Challenges for Employment 3.2.2.2.4.3 What About the Traditional Employment Relationship? Impact on Applicable Labour Law 3.2.3 The Posted Worker and Labour Law 3.2.3.1 What Is Posting? 3.2.3.2 The PWD: Its Genesis 3.2.3.3 PWD Versus Rome I Regulation 3.2.3.4 Not Every Posting Is Posting The Concept of Posting Under the PWD 3.2.3.4.1 Who Is the Worker? 3.2.3.4.2 Cross-Border Provision of Services 3.2.3.4.3 Relationship Between Posting Undertaking and Posted Person 3.2.3.4.4 Temporariness 3.2.3.4.4.1 Maximum Limitation? 3.2.3.4.4.2 Minimum Threshold? 3.2.3.5 The Nucleus of the Applicable Labour Law 3.2.3.5.1 The Concept of Remuneration 3.2.3.5.2 The Source of the Nucleus 3.2.3.5.3 Extension of the Nucleus 3.2.3.6 Applicable to All Sectors? The Difficult Issue of the Transport Sector. The Transport Workers Directive References Chapter 4: Cross-Border Employment and Social Security: The Legal Framework 4.1 The Conflict Rules 4.1.1 The Setup Under the Coordination Regulations 4.1.2 The Go-To Option: Choosing the Principle of the Country of Employment 4.1.2.1 The Lack of Synchronisation Between Tax Law and Social Security Law 4.1.3 The Fundamental Principles Behind the Conflict Rules 4.1.3.1 The Neutral Character 4.1.3.2 The Compulsory Character of the Conflict Rules 4.1.3.3 The Principle of Exclusivity and the Overriding Effect of the Conflict Rules 4.1.4 The General Conflict Rule 4.1.4.1 Active Versus Non-active Persons: The Role of the Lex Loci Laboris 4.1.4.1.1 What Is Employment? 4.1.4.1.2 Place of Employment 4.1.4.1.3 Specific Rule for Civil Servants 4.1.4.1.4 Specific Rule for Seafarers 4.1.4.1.5 Specific Provision for the Aviation Sector 4.1.4.2 Inactive Persons: The Role of the Lex Loci Domicilii 4.1.4.2.1 What Is Residence? 4.1.5 Special Conflict Rules 4.1.5.1 The Posting Provisions 4.1.5.1.1 Objectives 4.1.5.1.2 Relationship with the General Conflict Rule 4.1.5.1.3 The Legal Framework of Posting for Employees 4.1.5.1.3.1 Legal Conditions First Condition: The Employee Is Subject to the Legislation of the Posting State Second Condition: Direct Relationship Between the Employee and the Posting Employer Third Condition: Connection Between the Posting Undertaking and the Place Where It Is Established: No Letterbox Company Fourth Condition: Temporary Nature of Posting Fifth Condition: No Posting to Replace Another Posted Worker 4.1.5.1.4 The Legal Framework of Posting for Self-employed 4.1.5.1.5 Administrative Formalities 4.1.5.2 Working in Different Countries 4.1.5.2.1 The Connecting Factor 4.1.5.2.2 Simultaneous Employment Versus Posting 4.1.5.2.3 Activities as Employed Person in Two or More States: The Requirements and the System: Questions with a Snowball Effe... 4.1.5.2.3.1 Are Substantial Activities Performed in the State of Residence? What Is Substantial? The Normal and Regular Work Pattern Over the Next 12 Months 4.1.5.2.3.2 No Substantial Activities in the State of Residence Are Activities Performed for One Employer? MS of Employer Are Activities Performed for Several Employers Established in One MS? MS of Employer Are Activities Performed for Several Employers of Which One in MS of Residence? MS of Employer Not Residence Are Activities Performed for Several Employers in Several MS of Which At Least Two in Several MS Not MS of Residence? MS of Re... Activities for Different Employers on Behalf of an Employer Established in a Third Country and No Substantial Activities in th... The Place of Establishment of the Undertaking 4.1.5.2.4 Only Activities of Self-employment in Different States: Requirements and the System of the Conflict Rule 4.1.5.2.5 Simultaneously Employed and Self-employed Activities in Two or More Member States 4.1.5.2.6 Employed Activities in One Member State as a Civil Servant and Employed and/or Self-employed Activities in Another M... 4.1.5.3 Highly Mobile Persons: The Quest for a More Appropriate Framework 4.1.6 Complementary Rules 4.1.6.1 Voluntary Insurance 4.1.6.2 Particular Rule on Employment Contracts of the European Community 4.1.6.3 The Article 16 Agreement (Regulation 883/2004): A Possibility to Derogate from the Conflict Rules 4.2 Schematic Overview of the Conflict Rules (Fig. 4.1) References Chapter 5: The Other Side of the Coin: The Negative Consequences of the Internal Market 5.1 Social Dumping: What´s in a Name? 5.2 Regime Shopping 5.2.1 Differences in Social Security Contributions: Social Dumping and State Aid 5.3 Bogus-Self-Employment 5.4 Abuse of Law 5.4.1 Letterbox Companies 5.5 Subcontracting and Joint and Several Liability 5.6 Procurement: A Remedy Against Social Dumping? References Chapter 6: Social Law Enforcement Across Borders: A Few Sticking Points and Reflections 6.1 National Autonomy and Its Limits 6.1.1 EU Obligation: Minimum Floor and Maximum Ceiling 6.1.2 No Free Movement of Inspectors Leads to Growing Cooperation 6.1.2.1 Horizontal Cooperation: Member States Still at the Controls 6.1.2.2 The Establishment of the European Labour Authority: A Joint Fight? 6.2 National Control Measures in the Fight Against Social Fraud 6.2.1 Who Supervises? The Host or Home State? 6.2.2 Identification of Persons 6.2.3 Europe Ponders Over National Social Documents, Supervision Measures, and the Registration Obligation 6.3 The European Framework for Cooperation 6.3.1 Exchange of Data 6.3.1.1 Catch 22: The Fight Against Social Fraud or the Protection of Personal Data? 6.3.1.1.1 The Legal Framework 6.3.1.1.2 The Basic Principles 6.3.1.1.3 The Rights of the Data Subject 6.3.1.1.4 The Legal Basis for Restrictions 6.3.1.2 Databases as an Instrument in the Fight Against Social Fraud: The Ultimate Tool? 6.3.2 The Principles of Cooperation 6.3.2.1 The Guiding Principles 6.3.2.1.1 Responding to Reasoned Requests 6.3.2.1.2 Sending and Service of Documents 6.3.2.1.3 Obligation to Provide Information by the Persons Concerned 6.3.2.1.4 Deadline 6.3.2.1.5 The Principle of Equivalent Data Access 6.3.2.1.6 `Ex Officio´ Obligation to Provide Information 6.3.2.1.7 Costs 6.3.2.1.8 Practical Execution of the Cooperation 6.3.2.1.9 Further Cooperation 6.3.2.1.10 Active Participation 6.3.2.2 Comparative Overview of the Cooperation Principles (Table 6.1) 6.4 Lack of Cooperation: Quid Ergo? 6.4.1 The European Example Par Excellence: The A1 Form 6.4.1.1 No Cooperation Needed in Case of Fraud? 6.4.1.2 Withdrawing the A1 Form: A Process Fraught with Hurdles 6.4.1.3 The Consequences of Poor Cooperation 6.5 Cooperation in the Fight Against Cross-Border Social Fraud: Some Recommendations for Further Action 6.5.1 Information as Basis for Prevention 6.5.2 Single European Declaration Tool: Combining Information and Monitoring 6.5.3 Push Factor in Combating Fraud 6.5.4 Active Participation of Inspectors 6.5.5 The Institutional Framework 6.5.6 Multidisciplinary Cooperation References Chapter 7: Conclusion Bibliography