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Cross-border posting, the spirit and scope of the EU legislation

Prof. Enrico Gragnoli, Full Professor of Labour Law at Parma University

Il saggio analizza il difficile coordinamento fra il sistema italiano e quello europeo in materia di distacco transnazionale, in particolare con riguardo al tema della retribuzione e della protezione dei lavoratori distaccati. In questa prospettiva, alla luce anche delle ultime pronunce giurisprudenziali, vengono analizzati gli scopi e i limiti della disciplina (nazionale e comunitaria) suggerendo una diversa lettura del concetto di dumping sociale e degli strumenti di contrasto al lavoro compiuto in condizioni di illegittimità.

PAROLE CHIAVE: distacco transnazionale - distacco di lavoratori - distacco - tutela dei lavoratori - dumping salariale

Distacco transfrontaliero, lo spirito e il campo di applicazione della legislazione dell’UE

The essay analyzes the difficult coordination between Italian and European legal frameworks in the matter of transnational posting, in particular with regard to remuneration and protection of posted workers. In this perspective, also in the light of the recent case law, aims and limits of the (national and European) discipline are highlighted, suggesting a different reading of the concept of social dumping and of the instruments to combat work performed in conditions of illegality.

Sommario:

1. Cross-border posting, pay and protection under the EU law - 2. Difficult coordination between the Italian system and the EU one on cross-border posting - 3. The objectives of the EU legislation on posting in accordance with the latest case law - 4. The purposes and limitations of the legislation on cross-border posting - 5. Cross-border posting and promotion of competition - 6. A recent review of the concept of social dumping and fight against work under illegal conditions - NOTE


1. Cross-border posting, pay and protection under the EU law

With the latest developments [1], especially as regards “social clauses”, the EU case law has not changed, to any material extent, its stance [2], which is not very favourable to pay protection [3] and, in general, to the protection of posted workers; the problem lies at the very origin of law, at least for Italy, as isolating the so-called “social clauses” from the regulatory framework conflicts with their history, especially for clauses concerning pay only [4], which are to be seen as a development of Article 36 of the Italian Constitution and Article 36 of the Italian Workers’Statute, at least as long as those arrangements remain in their scope and retain constitutionality [5]. The EU principles can in no way be irrespective of overall interpretation of our trade union system and, although taking account of today’s integrated economy [6], the Italian law and the associated general theory of collective bargaining agreements must not be forced to become consistent with the EU legislation, if the latter does not consider their ultimate meaning and does not accept it as a core part of our law. The EU case law has not changed its approach “to voluntary systems of industrial relations, which are bound to be (…) irrelevant to the laying down of minimum work conditions for posted workers” [7], as its original stance [8] has not changed [9]. No change in [continua ..]

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2. Difficult coordination between the Italian system and the EU one on cross-border posting

For the EU system, freedom to provide services remains key in the present situation [24], as it has been for many years, although no material tensions are found in the Italian law, which has never required any ruling [25], also due to poor effectiveness of foreign undertakings in tendering procedures of the Italian public administration for high labour intensity contracts. Contrary to the stance of part of legal scholars [26], having excessive concerns about the fate of weak provisions, such as those laid down by Decree no. 50 of 2016 would be rather peculiar, with an obligation to transpose the treatment under the agreement as a whole; the problem is not defending these provisions, which are the expression of intentional and unreasonable departure from Article 36 of the Workers’Statute [27]. The provisions laid down by Decree no. 50 of 2016 may very well be left to their fate and their constitutionality must be questioned (Article 39 of the Italian Constitution). The general problem concerns reconciliation of different regulatory systems [28], i.e. between the EU one, relying on strict exegesis of written sources, and the Italian trade union one, in which the agreement effectiveness rules follow their own way, relying on general criteria. Decree no. 50 of 2016 causes objective problems exactly because it aims at imposing the obligation to apply agreements that do not comply with the model accepted by Directive 96/71/EC, i.e. agreements [continua ..]

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3. The objectives of the EU legislation on posting in accordance with the latest case law

In an uneven scenario of torn between economic freedoms and workers’protection [46] and despite pessimism is still necessary, a recent judgement [47] has considerable value, which states that “the coordination measures adopted by the EU legislature (...) must not only have the objective of making it easier to exercise the freedom to provide services, but also of ensuring (...) the protection of other fundamental interests that may be affected by that freedom”. If reconciliation of opposite purposes is to be put forward again, often achieved to the detriment of social ends, the legislation governing cross-border posting must ensure “the freedom to provide services on a fair basis, that is, within a framework of rules guaranteeing competition that would not be based on the application, in one and the same Member State, of terms and conditions of employment at a level that is substantially different depending on whether or not the employer is established in that Member State” [48]. Even assuming it has been implemented with little partiality to our trade union system, at least the overall directions reflects a set orientation and the decision dwells on the transformations made to the original setting of the directive and their meaning [49], versus the original idea of the EU regulation [50]. Nonetheless, an Italian jurist, faithful to the traditional and unsurpassed concept of labour law as a tool to [continua ..]

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4. The purposes and limitations of the legislation on cross-border posting

Similar concepts are expressed in a contemporary judgment [63], which states that the EU legislation on posting “is such as to develop the freedom to provide services on a fair basis”, which would be “the main objective pursued by that directive, since it ensures that the terms and conditions of employment of posted workers are as close as possible to those of workers employed by undertakings established in the host Member State, by providing that those posted workers have the benefit of terms and conditions of employment in that Member State that offer greater protection than those provided for” by the original setting of the 1996 Directive. This statement is questionable, as it assumes the rationality of the present EU legislation structure, taking for granted both its consistency with the treaties’principles and its compliance with substantive justice, which, conversely, are to be proved [64]. Indeed, the achievement of the best possible balance between competition promotion and workers’protection can in no way be deemed evident, also accepting the fat that it is the inevitable purpose of the EU law and that enterprise initiative needed such enhancement [65]. With no actual verification of the achievement of the Directive objectives and, therefore, with a predetermined and groundless absolving stance, the judgement confirms the purpose of the EU legislation [66], i.e. it accepts the EU regulation [continua ..]

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5. Cross-border posting and promotion of competition

As rightly observed, posting “is a particular form of mobility or circulation of manpower, but it actually operates as a carrier of national labour mobility with important (…) outcomes for state systems as it is a scheme (…) to be included in the scope of free circulation of services” [75], and this consideration places the overall meaning of directives and amendments thereto [76], at the very beginning of the European debate [77]. The defence of competition has brought conciliation of different objectives back to forefront and, especially, it has questioned the state concept of the workers’protection system [78], if the EU legislation is seen as mechanism to defined the applicable law [79], with an intuition that is correct, albeit with some excess. Indeed, this is not all that Directive 96/71/EC does [80], as it has introduced a specific safeguard, albeit as a compromise and connected to how competition is considered, which should be “fair” [81]. Being referred to several times in the case law [82], this adjective is tautological, as it does not imply any axiological or legal parameters determined by others [83], but rather the equilibrium point as set by the regulation, exactly with relentless defence of its adversarial structure. The result in terms of employers’protection and in terms of employees’protection is the definition of [continua ..]

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6. A recent review of the concept of social dumping and fight against work under illegal conditions

As recently observed, with good insight of the problem, it is “improper to speak of social dumping in a market with no barriers limiting circulation of goods and people, so that it is rather supervisory weakness the factor that actually provides businesses of a given State with a competitive advantage thanks to a whole area where both national and EU laws are not applied and complied with” [96]. Empirical research projects underway aim rather at proving that the shortcomings of the supervisory systems are not concentrated in some settings or areas, but are a general and wide-ranging tendency. Reasoning on the causes of actual non– implementation [97] is essential for any discussion on unlawful undertakings, but it is not exhaustive, it is not enough just talking of the so-called “undeclared work” [98], a traditional expression on unlawfulness [99], but not the most innovative one and, at least in Northern Italy, not the most dangerous one [100]. Even before that, one may wonder whether there is an original fault in the Italian approach and in the EU one, i.e. placing the undertaking paradigm at center state as the driver of labour law, with the naive and implicit belief that only lawful undertakings exist, without considering that the wider and deeper deployment of labour safeguards directed by others generate more alluring temptations in those focused on cost control, through [continua ..]

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NOTE

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