Vander Elst exemption-again under the ECJ’s scrutiny

22 years after the ECJ landmark case in Raymond Vander Elst (C-43/93, 9 August 1994), The Hague District Court (Netherlands) referred for a preliminary ruling several questions, the first aiming to clarify whether the right of residence in the host Member State is directly derived from Art 56TFEU(C-540/22). In such a case, the obligation to…

2 ECJ cases on decisions to withdraw A1 certificates

In TE (C-422/22), the Supreme Court of Poland referred to the ECJ a request for a preliminary ruling seeks to ascertain whether the institution of a Member State which has issued an A1 certificate, and which without a request from the competent institution of another Member State concerned, intends to withdraw, or invalidate that certificate,…

ECJ ruling in ROI Land Investments Ltd – concept of employment relationship

On 20 October the ECJ delivered its ruling in ROI Land Investments Ltd (C-604/20, EU:C:2022:807).  The case in the main proceedings The case in the main proceedings is concerned with a transfer of a contractual relationship (service agreement) concluded by a German national with a company located in Canada, to a newly established Swiss company,…

European Court of Justice- triangular employment relationships

On 6 September 2022, a recent request for a preliminary ruling made by the Court of Budapest,wasdeclared manifestly inadmissible for lack of sufficient information (Mara-Tóni Bt., C-244/22, EU:C:2022:674). The request is concernedwith framing the scope of the concept of temporary agency work, and ifrelevant, with the interpretation of Article 1 first paragraph of Directive 2001/23/EC on…

Court of Cassation Luxembourg-termination of employment during posting period

The Court of Cassation of Luxembourg overturned a Court of Appeal ruling relating to the interoperability between the Posting of Workers Directive and Rome I Regulation (78/2022 of 19/05/2022- CAS-2021-00082). The facts    At the age of 62, the plaintiff in cassation was hired by the Luxembourg branch of a French company, for an indefinite…

Posting of Workers- the Criminal Court of Bordeaux makes the difference

In a recent judgment relating to posting of workers, the Criminal Court (Tribunal Judiciaire) of Bordeaux (France) clarified the interpretation must be given to the concept of “continuous, stable, and regular activity within the French territory”, in the light of EU law. The French law expressly precludes foreign companies from enforcing the provision of the…

Watch out to short-term assignments

The draft law transposing Directive 2019/1152 on transparent and predictable working conditions was brought to the Belgian Chamber of Representatives. The interoperability between Directive 2019/1152 that create obligations on the employer by virtue of the sending Member State (MS) law, and Directive 2014/67 that create obligations on the employer by virtue of the host MS…

Transparent, predictable, and fair conditions for posted workers

The Law of 19 June 2022, transposes into the Belgian law Directive 2020/1057/EU laying down specific rules with respect to Directive 96/71/EC and Directive 2014/67/EU for posting drivers in the road transport sector. The law amends and supplements: the Law of 5 March 2002 on the posting of workers the Law of 12 April 1965…

Temporary agency work- derogations from the principle of equal treatment

On 14 July, Advocate General Collins delivered his Opinion in TimePartner Personalmanagement GmbH (C-311/21, EU:C:2022:581). Article 5 Directive 2008/104 (Temporary Agency Work Directive) provides for the principle of equal treatment: 1. The basic working and employment conditions of temporary agency workers shall be, for the duration of their assignment at a user undertaking, at least…

Social dumping- “Brazilian chains”

The SIRS/SIOD 2022 “Action Plan fight against social fraud” focuses inter alia on tackling the so called “Brazilian chains”. Third-country nationals, regularised on grounds of a permissive immigration law in Portugal, are “posted” by Portuguese companies (often “letterbox companies”), to carry out work in Belgium (essentially in the construction sector). In 2022, at least 200…