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.

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 perspective results from the decision about the Finnish law, which providers for a system to give general effectiveness erga omnes to trade union agreements. Rather, the theses contrary to social clauses were confirmed for a Law of the Land of North Rhine-Westphalia (Germany) [10], albeit as regards workers that permanently performed their jobs outside the German territory, whereas a more open stance was expressed later [11] for employees of the “potential contractor, which filed a claim against its exclusion from the tender procedure”, who “would have worked in Germany, as the contract is for the collection, carriage and delivery of letters, parcels and packages in the city of Landau” [12]. In this case, “the minimum wage to be paid resulted directly from the regional law, rather than from reference to the industry-specific collective bargaining agreement, and (…) at that time no other federal law applying to the service [continua ..]

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 with no binding effectiveness erga omnes, with dyscrasia confirmed by Decree no. 136 of 2016 [29]. As remarked, “the unprecedented challenges that the EU law poses to the national one join (…) the rekindled internal debate on the legal minimum wage and on the structure and effectiveness of collective bargaining: in redesigning Italian trade union law, it will be essential to take into account also the specific dynamics of the multilevel system (…) which Italy is (…) included in” [30]. Albeit suggestive, this remark may imply some passivity of out thought, which tends to suffer intrusions of the EU case law, without any overall screening, which cannot consist only in reconstructing this or that EU source, but must refer to the core values of our law. The competition between systems has been seen as a cause of transformation of the industrial relations framework [31], in the light of the tensions generated by the current crisis; [continua ..]

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 rebalance opportunities and, therefore, of some limitation to the original power of employers functional to the protection of employees, cannot like this compromise structural view and, quite rightly, its implementation can be seen in posting [51]; due to its natural possibility to expand, freedom of economic initiative does not need, in absolute terms, any specific safeguard or, however, not to the extent protection is needed by workers, although this conclusion cannot be upheld by the EU case law, for which, to the contrary “in the light of the objective that was pursued by Directive 96/71, namely to ensure the freedom to provide transnational services within the internal market in conditions of fair competition and to guarantee respect for the rights of workers”, the EU “could take the view that it was necessary to adjust the balance at the heart of Directive 96/71 by strengthening the rights of posted workers in the host Member State in order that competition [continua ..]

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 model, which is considered adequate by definition, with no critical analysis whatsoever, based on unavoidable solidarity between EU institutions, which are bound by one reductive concept of meaning and purposes of labour law [67]. This is maintained claiming higher protection of free competition [68], but it has general value, as planned acknowledgement of the intrinsic balance in the choices made by the legislator. The question of workers’protection countering and limiting competition protection is not even considered. Thus reduced, workers’protection does not make much sense, so much so that the Directive defence is based on downsizing its scope, as “neither the substitution of the concept of ‘remuneration’ for that of ‘minimum rates of pay’ (...), nor the application to posted workers of terms and conditions of employment of the host Member State with respect to reimbursement of expenditure to cover travel, [continua ..]

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 “fair” competition, so that the adjective specifies only the reconciliation of the two values, which is held as necessary and referred to the policy choices made by the Union and to their transformation over time; from this perspective, it is not by change that social security profiles have been developed [84], because, competition is “fair” where it is a compromise, employees’safeguard is partial or, as some say, selective, thus relying on choices that are discretional [85] rather than aimed at the entire range of their needs. The objective is pursued also determining the applicable law [86], as it is generally frequent at this stage in the EU law, for instance regarding air transport [87] and social security [88]. Nonetheless, along its evolution, Directive 96/71/EC has brought about a substantial regulation “laying down a true right to equal pay for posted workers and (…) national workers, which also [continua ..]

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 intentional breach of full regulatory systems [101]. Rather, one may want to discuss the statement saying that “rebalancing power between capital and labour cannot be fostered other than within the individual businesses, as, following every support measure claimed by the trade unions, one can see competition shrinking, also when (or rather exactly when) the claim is general and aims at obtaining a common measure” [102], because convergence of interest in international trade would not be “any natural result of trade development, but requires a specific regulatory action” [103]. The latter statement is certainly right in general, but one may wonder if it could be upheld as regards posting, because it assumes a structural limit to labour protection functional to the protection of economic freedoms. Indeed, it is less urgent today ensuring the creation of a single market, whereas the EU legislation must, at the same time, aim at promoting the provision of [continua ..]

NOTE