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Transnational posting and Protection of rights: Labour Law accompanies posted workers within the EU

Stefano Maria Corso, Assegnista di ricerca presso l’Università di Parma

The essay analyses the different instruments of cooperation, coordination and information between European Member States as required by the Directives aimed at regulating transnational posting of workers. In order to avoid any duplication or disproportion in authorizations, control activities and sanctions, the essay then highlights the role of labour inspectorates and the consequential evolution of Italian legislation up to the latest innovations introduced by Legislative Decree no. 122/2020.

 

 

PAROLE CHIAVE: distacco transnazionale - distacco - distacco di lavoratori - cooperazione amministrativa - diritto all - effettività della tutela

Distacco transnazionale e tutela dei diritti: il Diritto del lavoro accompagna il lavoratore distaccato in ambito UE

Il saggio analizza i diversi strumenti di cooperazione, coordinamento e informazione tra gli Stati, previsti dalle Direttive europee e volti a regolamentare a livello comunitario il distacco transnazionale dei lavoratori. Al fine di evitare ogni duplicazione o non proporzionalità con riguardo ad autorizzazioni, attività di controllo e sanzioni, il saggio evidenzia di seguito il ruolo degli ispettorati del lavoro e la conseguente evoluzione della normativa italiana alla luce delle ultime novità introdotte con il D.lgs. n. 122/2020.

Sommario:

1. A premise: from balancing rights to deciding the limits of necessary “collaboration” - 2. Controls, guarantees and sanctions for non-compliance with transnational posting regulation: first approaches - 3. Administrative coordination and right to information before the objectives of European harmonization - 4. ... and the consequential evolution of Italian legislation (Legislative Decree no. 136/2016) - 5. Detecting infringements: the role of labour inspectorates and national jurisdiction - 6. The impact of Directive EU 2018/957 and Legislative Decree no. 122/2020 for a better coordination and an effective sanctions framework - NOTE


1. A premise: from balancing rights to deciding the limits of necessary “collaboration”

The free movement of persons and services is one of the main policy objectives of the European Union [1]. It implies that member states must ensure that legal, economic and even de facto barriers between them are removed, so that the movement of persons and services underpins the movement of rights. The intention of the European Union to act like a system of “communicating vessels” is intended to ensure equal business opportunities and equal working conditions [2], so that the posting of workers does not serve (also) as an expedient to reduce costs through “economy” of guarantees and differentiated treatments (in an opportunistic or sometimes fraudulent way) based on nationality, residence and origin (from an EU member State or, also, from an extra-EU country) [3]. Indeed, striking a balance between competition law and social rights has always been far from easy and, precisely on the issue of transnational posting [4], the approach that looks at the regulatory framework outlined in the Services in the internal market Directive continues to be a source of debate both before the Court of Justice [5] and also on the occasion of the most recent reform of the matter pursued through Directive (EU) 2018/957. That being said, the original Directive 96/71/EC obviously dealt with the outlining of the key pillars Member States should be inspired by (and adhere to) in the field of transnational posting of [continua ..]

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2. Controls, guarantees and sanctions for non-compliance with transnational posting regulation: first approaches

The 1996 Directive represents a regulatory model capable of guaranteeing its effectiveness, and of the eight articles, Article 4 (Cooperation on information), Article 5 (Measures), Article 6 (Jurisdiction) and, with a summary scope, Article 7 (Implementation) are particularly important [10]. Firstly, the equal treatment of posted workers within the EU does not only respond to the understandable protection of the workers with regard to “terms and conditions of employment” (as stated in the heading of Article 3) [11], but also to the need to place companies on an equal footing with regard to the competition regime. Recital 5 makes explicit reference to a “climate of fair competition” [12]. Hence, the provision and legitimacy of the aforementioned “control” measures, certainly restrictive – at least potentially – of the freedom to provide services, but in any case to be considered legitimate based on an autonomous assessment and balancing of interests, and justified by the need to monitor the application of the working and employment conditions envisaged by the Directive. Secondly, the ‘information’ which the Member States must undertake to provide concerns existing legislation (ius conditum) or any national practices on the posting of workers and the indication of the internal liaison offices and/or the national bodies responsible for monitoring the terms and conditions of employment [continua ..]

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3. Administrative coordination and right to information before the objectives of European harmonization

The term “adequate measures” mentioned in the directive at the time of transposition was therefore apparently lacking, not only in the light of the harmonization of objectives, but also in the light of the historical context of reference, where the administrative activity, similarly to the regulatory languages and conceptual systems [23], represents nothing more than a typification of the legal experience definable as law in action. Hence, there is an interest in a greater “alignment” of the control activities concerning the hypotheses of non-compliance and cooperation across Member States. These have been subject to an ongoing process of fine-tuning over the last twenty years, both at the European and national level (even if, at least as far as Italy is concerned, bilateral agreements on the matter with other Member States have not been greatly developed) [24]. A first measure is Regulation (EU) no. 1024/2012 of the European Parliament and of the Council, which streamlined the terms and procedures of “administrative cooperation” between the Member States of the European Union. This is a general measure, not aimed specifically at the transnational posting of workers, but intended to make cooperation and the exchange of information between Member States and with the Commission “more effective”, including in the case of “free movement of ... persons, services” (Recital 1). A second, more relevant, [continua ..]

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4. ... and the consequential evolution of Italian legislation (Legislative Decree no. 136/2016)

The EU ius novum led, consequently, to a new intervention of the Italian regulator through Legislative Decree no. 136 of 17 July 2016 [41]. Summing up, as regards the implementation of Article 4, par. 1, of Directive 96/71/EC, as an alternative to the designation of a specific liaison office, the Italian regulator opted for the designation of several competent national bodies. Article 2, par. 1, letter c) of Legislative Decree no. 136/2016 designated the Ministry of Labour and Social Policies and the National Labour Inspectorate, as well as the judicial authority, for the sole purpose of the provisions regarding the procedure for the enforcement and recovery of administrative penalties. Preliminary to this is the verification of the “authenticity of the posting” (Article 3) and of the “terms and conditions of employment” (Article 4) in relation to which the posted worker is granted protection “in administrative and judicial proceedings” [42]. To this end, the clarification of the “administrative requirements” with a preventive scope (Article 10) is followed by the control procedures in compliance with the principle of proportionality and non-discrimination (Article 11) and the applicable “penalties” (Article 12). Inspections relating to situations of transnational posting, in fact, must be based on a specific risk assessment (or at least on a generally compliant [continua ..]

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5. Detecting infringements: the role of labour inspectorates and national jurisdiction

A more complex issue which has not been thoroughly examined is the enforcement of administrative penalties where the jurisdictional guarantee takes other forms. The Inspectorate also plays a central role in this case: under Article 14 of Legislative Decree no. 136/2016, it is responsible for the transmission – through the IMI system [46] – of requests for notification of administrative or judicial measures or requests for recovery of an Italian pecuniary administrative penalty abroad, when the measure has become final and when, for its administrative enforcement, it is not possible to apply “the provisions and procedures provided for by the national legislation” [47] . Similarly, pursuant to Article 18 of Legislative Decree no. 136/2016, the National Labour Inspectorate is called to process – within a term of thirty days – requests for notification of an administrative or judicial measure originating from another Member State and received through the IMI system, imposing or confirming an administrative pecuniary sanction. Apart from the cases of mere notification of the measure, the procedure for the verification, recognition and enforcement of administrative pecuniary penalties imposed by a foreign Member State for non-compliance with EU legislation on transnational posting (Articles 18 et seq. of Legislative Decree no. 136/2016) is entrusted to the Court of Appeal in whose jurisdiction the (natural or [continua ..]

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6. The impact of Directive EU 2018/957 and Legislative Decree no. 122/2020 for a better coordination and an effective sanctions framework

There is one last – for the time being – development in the EU regulatory framework. Following a monitoring activity by the Commission [53] and on the basis of a reassessment (“on a fair basis”) of the circumstances [54], Directive 96/71/EC was amended by Directive (EU) 2018/957 of 28 June 2018 [55], which gives Member States a two-year period to comply (30 July 2020) (Article 3) [56]. The framework is that of a re-evaluation – “proportionate and necessary”, as well as “lawful” and more “fair” – of the restrictions on the freedom of services (in particular, with regard to the rules on long-term posting) and their justification in the light of “overriding reasons of general interest” for the protection of posted workers. Therefore, the 1996 Directive maintains its general structure; however, there is a need for a partial new drafting to reflect the over twenty years of application and the problems identified (especially after the expansion of the EU to Central and Eastern European countries). Recital 4 is explicit in this sense, as it explains the rationale of the EU regulator’s intervention “to ensure uniformity in the application of the rules and a genuine social convergence”, confirming that these are the critical profiles that have emerged in more than twenty years of application. Recital 16 is also explicit in underlining that [continua ..]

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NOTE

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