TABLE OF CONTENTS

Notes on Contributors

Foreword

PART I.  THE SERVICES DIRECTIVE

1.      The Proposal of the European Commission for a Directive on Services in the Internal Market: An Overview of its Main Features and Critical Reflections

          Wouter Gekiere

 2.      The Proposed Directive on Services and Labour Law

          Niklas Bruun

 3.      Mutual Recognition and Country of Origin in the case-law of the European Court of Justice

          Ronnie Graham

 4.      The "Country of Origin Principle" and Labour Law in the Framework of the "European Social Model"

          Alan C. Neal

 5.      The Implementation of the Proposed Directive in Services in the Internal Market.  A French Perspective

          Jacques Rojot

 6.      The Implications of the Services Directive on Labour Law.  A German Perspective

          Manfred Weiss

 7.  Problems of Surveillance and Control of Labour Standards

          Andrzej M. Swiatkowski

 8.  Monitoring of Labour Standards in Case of Posting: Some Troublesome Issues under the Proposed Services Directive

          Frank Hendrickx

 9.  Surveillance and Control of Labour Standards at EU level

          Michele Colucci

 10.    The Point of View of the Federation of Belgian Enterprises on the Services Directive

          Arnout De Koster

 11.    The Point of View of the ETUC

          Catelene Passchier

 12.    Euro-CIETT Position Paper on required Amendments to the Directive on Services in the Internal Market

          Ciett

 13a.  Proposal for a Directive of the European Parliament and of the Council on Services in the Internal Market, 13 January 2004

          Commission of the European Communities

 13b.  Opinion of the Committee on Employment and Social Affairs for the Committee on the Internal Market and Consumer Protection on the Proposal for a Directive of the European Parliament and of the Council on Services in the Internal Market, 19 July 2005, Draftswoman: Anne Van Lancker

          European Parliament

PART II.  APPLICABLE LAW

 14.    The Rome Convention on the Law applicable to Contractual Obligations and Labour Law (1980)

          Willy van Eeckhoutte

 15.  Towards a more effective Posting Directive

          Mijke Houwerzijl

 16.  Implementation of the Posting Directive 96/71 in Belgium

          Roger Blanpain

 17.  Implementation of Directive 96/71 on Posting of Workers in Italy

          Michele Colucci

 18.  Implementation of the Posting Directive in the Netherlands

          Mijke Houwerzijl

 19.  Implementation of the Posting Directive in Poland

          Andrzej M. Swiatkowski

 20.    Posting and Social Security Coordination

          Frans Pennings

 21.    The Principles of the Freedom of Movement and Equal Treatment in the Context of the Discussion on the Draft Services Directive

          Chris Engels

 22.  Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996 concerning the Posting of Workers in the Framework of the Provision of Services

          Commission of the European Communities

 23.  Communication from the Commission to the Council, the European Parliament, the Economic and Social Committee and the Committee of the Regions – The implementation of Directive 96/71/EC in the Member States

          Commission of the European Communities

Notes on contributors

 Blanpain Roger, Universities of Leuven and Limburg, Belgium and Tilburg, the Netherlands

Bruun Niklas, Hanken School of Economics, Helsinki, Finland and National Institute for Working Life, Stockholm, Sweden

Colucci Michele, Agent of the Legal Service of the European Commission, Researcher at the University of Salerno, Italy

De Koster Arnout, Director of the Federation of Belgian Enterprises, Belgium

Denys Jan, Randstad temporary employment agency, Belgium

Engels Chris, Professor KULeuven, Belgium and Lawyer, Partner Claeys & Engels

Gekiere Wouter, Legal adviser to the European Parliament

Graham Ronnie, Legal Secretary to the European Court of Justice

Hendrickx Frank, Universities of Leuven, Belgium and Tilburg, the Netherlands

Houwerzijl Mijke, Researcher at the Department of Labour Law and Social Security Law at Tilburg University, the Netherlands

Neal Alan, Professor of Law and Director of the Employment Law Research Unit in the University of Warwick, United Kingdom; Convenor of the European Association of Labour Court Judges; previously founding editor of the International Journal of Comparative Labour Law and Industrial Relations

Passchier Catelene, Confederal Secretary of the European Trade Union Confederation

Pennings Frans, Professor of International Social Security Law at Tilburg University and Utrecht University, the Netherlands

Rojot Jacques, University of Paris, France

Swiatkowski Andrzej, Professor of Labour Law, Jagiellonian University of Cracow, Poland; Vice President of the European Committee of Social Rights, Council of Europe, Strasbourg.

Van Eeckhoutte Willy, University of Gent, Belgium; Member of the Bar of the Supreme Court of Belgium

Weiss Manfred, University of Frankfurt, Germany

FOREWORD

 This bulletin contains the papers, which were presented at the European Forum on Freedom of Services and Labour & Social Security, which was held under the auspices of the Society for International and Social Cooperation and the Royal Flemish Academy for Sciences in Brussels, Belgium on 16-17 June 2005.  The programme was as follows:

The proposed directive on services.  An overview

Drs. Wouter Gekiere, KULeuven, Belgium

 The proposed directive on services and labour law

Prof. Niklas Bruun, University of Stockholm, Sweden

 The Rome Convention on the Law applicable to Contractual Obligations and Labour Law (1980)

Prof. Willy Van Eeckhoutte, Ugent, Belgium

 The posting directive, 96/71, content and implementation

Dr. Mijke Houwerzijl, University of Tilburg, the Netherlands

 Posting of workers and social security

Prof. Frans Pennings, University of Tilburg, the Netherlands

 Free movement of workers and equal treatment

Prof. Chris Engels, KULeuven, Belgium

 The “Country of Origin” principle and labour law, including the acquis communautaire

Prof. Manfred Weiss, University of Frankfurt, Germany

Prof. Alan Neal, University of Warwick, United Kingdom

 Problems of Surveillance and Control of Labour Standards

Prof. Andrzej Swiatkowski, University of Krakow, Poland

Prof. Michele Colucci, University of Salerno, Italy

 Recognition, Prior Declarations, Employment Documents and Representatives

Prof. Frank Hendrickx, KULeuven, Belgium

Prof. Jacques Rojot, University of Paris, France

FORUM - PANEL DISCUSSION

 Mr. Ronnie Graham, European Court of Justice

Mrs. Anne Van Lancker, European Parliament

Mr. Arnout De Koster, VBO

Mrs. Catelene Passchier, ETUC

Mr. Jan Denys, Randstad

Mr. Jan Wouters, University of Leuven

A crucial moment

The Forum came at a very “topical” and interesting moment, namely after the two referenda, which were held on the “European Constitution”, which amounted to two times a resounding NO, in France as well as in the Netherlands.  After these referenda Europeans have to ask themselves whether we do not have to reconsider the European project again:

• what Europe should stand for;

• what the Member States should do and

• what about the role of the social partners?

One has to reflect, it was said, on the “social Europe” we want.  The overall framework is open again, for discussion.  Where to go and what to do?  

Freedom of services

Due to the Bolkestein initiative, aiming at speeding up the market for services, that specific fundamental freedom is itself subject of very heated debate.

No one really discusses that we have to foster the market of services in order to increase economic growth and the number of jobs:  services already account for 70 % of the EU jobs!.  A more open market promises more employment. No doubt.

Freedom of services, however, is nothing new.  It is one of the four fundamental freedom, which are enshrined in the Treaty on the European Community since 1957: freedom without discrimination and restrictions is provided for in article 49 TEC.  There is abundant case law of the European Court of Justice accepting that Member-States can impose their own labour law system and generally binding collective agreements, provided these requirements are proportional and necessary.

So where is the problem?  

Points to be discussed

Fact is that the sweeping approach of Commissioner Bolkestein, especially at the exact moment of the widening of the EU with ten new member states and increased globalisation, push us to look again at the balance between fair competition on the market at the one hand and adequate social protection of workers at the other hand. Points of discussion are amongst others:

• the notion of service, including the meaning of the so-called “definite period”;

• the sectors; which should be in-, excluded.  Does it really matter if the “temporary work agency “sector would be excluded from the services directive, since it still falls under the scope of article 49 EC?

• the applicable labour law and social security standards;

• acceptable administrative conditions;

• required documents & languages;

• control: by the country of origin or the work land?

• collaboration between member states and social partners;

• how to deal with directive 96/71?  Leave it or amend it,  exclude it from the scope of the service directive?

• do national systems have to adapted in order to provide e.g. the possibility of extension of collective agreements in countries where this is not the case?

• how to effectively control and eliminate the black market, illegal work, as well at home as from abroad?

• What about the self-employed, coming from low wage countries?

The purpose of the European Forum was to discuss these question in an open and academic way, free of mind.

This happened in an unprecedented way. 

An open academic discussion

Numerous questions ware tackled:

• the legal basis for the service directive was questioned;

• what are services of public interest?  Should they be excluded from the scope of the service directive?

• what is the difference between the principles of mutual recognition and country of origin?

• is there a European concept of labour law?

• the role of the Court of Justice;

• Rome I[1] and the 96/71 directive;

• choice of applicable law?  At which moment?

• European labour inspectors; their freedom to move;

• the lack of cooperation between member states;

• the problem of the 21 languages;

• how to define sectors?

Did the Bolkestein initiative come at a bad moment?  For France this seemed to be the case, given globalisation, the widening of the EU and the deteriorating of the French model at that particular moment.  The definitions of the service directive were to wide: thus the notion of services, of sectors (social, education, health to be excluded), of the notion of authorisation; the country of origin principle was too general; the uncertainties of the laws of other member states a real problem.

The notion of public order was too extensive.  There would be a concurrent application of various legal systems.  What about the role of the organisers of providers of services?  The complexity of the control was underlined; as well as the absence of cooperation between member states and why should one not harmonise more before proceeding with a service initiative?

Other proposals, emanating from a EP reporter, favoured a sectoral approach; concerning social policies, these should be excluded from the service directive and the directive be limited to pure commercial sectors.  The country of origin principle should be shelved.  More harmonisation was an explicit goal in order to create a level playing field.  Labour law and collective agreements, including industrial warfare of the work-land should be the rule.  Movement of people in the framework of services should be covered by Rome I and Rome II[2].  Temporary work should be excluded and subject of a proper legal European instrument; the same for services of general interest.

An employers’ representative was of the opinion that the Bolkestein initiative was too much, too late and would lead to abuses.  Problems arise with the principle of the country of origin, the scope and the authorisations (they should remain in case of temporary work, security agents and construction).

Also a trade union representative was of the opinion that Bolkestein was too big a step. The proposal came at the wrong moment, was presented in the wrong way, just before enlargements.  Social aspects were simply ignored.  There was simply no reply to social questions, raised by the unions.  A more careful approach was pleaded for, more mutual help.  The country of origin principle should be dropped in favour of the principle of mutual recognition.  The country of destination should come first: labour law and collective agreements, including industrial action, should be fully respected.  The 96/71 directive was considered to be too narrow and too limited.  Rome I and Rome II were considered to be too complicated.  More European Labour Law was necessary.  Temporary work agencies should be dealt with separately.

A spokesman for the temporary work sector pleaded for a grand step forward regarding freedom of services, thus avoiding a standstill for a lot of decades.  Free movement should be bolstered.  Temporary work creates jobs: 7 million workers are engaged in temporary work in the EU on a yearly basis.  Obstacles for free movement of services should be lifted.  The bigger temporary work agencies, situated in the various member states, were willing to work together to see the appropriate laws and conditions would be applied in case of transnational temporary work.  Control by the work land should be effective.  The temporary sector does not want to be excluded from the service directive, but included as a normal sector of activity.  A generalised system of licences was pleaded for as well as a more positive attitude.

Finally, a global picture was presented, including the WTO and GATT, explaining the 4 ways of supplying services, especially mode 4, concerning the individual providers of services and the restrictions imposed on their movement (requirement of nationality, residence, maximum number and the like).

In short, an excellent forum.  Again, my repeated thanks to the Royal Flemish Academy, the participants and the colleagues, whose papers illustrate the importance of the subject and the depth of the discussion.

A special word of thanks for Ronnie Graham, who helped by rewriting some of the papers. 

Roger Blanpain,

Honorary President of the International Society for Labour and Social Security Law,

Professor at the Universities of Leuven and Limburg (Belgium) and Tilburg (The Netherlands)

Post Scriptum

European parliament: Report Anne Van Lancker

On 13 July 2005, the Employment Committee of the European Parliament voted with a large majority (23 votes in favour, 6 against and 9 abstentions) in favour of nearly all the amendments of Ms Van Lancker, Belgian Member of the Committee.

A large majority deleted the provisions limiting the possibilities for Member States to monitor and enforce regulations with regard to cross border posting of workers, reversed the country of origin principle so that it would not apply unless a minimum level of harmonisation was achieved, and decided that the Directive should not apply to a range of sectors with universal or public service obligations.

Most importantly, labour law and collective agreements were excluded from the scope of the directive. The directive on posting of workers of 1996 retains complete preference over the service directive.  Labour and working conditions of the work land need to be respected; it is also the work land, who will control whether labour and working conditions of posted workers are respected.

Under the EP’s procedure the Employment Committee has the lead on employment related aspects of the Services Directive: Worker protection, Employment law, collective agreements and social security.

The report of Ms Van Lancker will be discussed by the Plenary of the European Parliament, at the end of October 2005.

R.B.

31 July 2005.