Recently the Belgian Court of Cassation confirmed a ruling in which overall sentences of 12 months imprisonment and EUR 464.000 criminal fines were imposed. The case is prima facie concerned with posting of workers in the transport sector. It appeared that the genuine situation constitutes employment within the Belgian territory (out of the scope of…
DIMONA-The Court of Cassation reverses its jurisprudence
Our article “Binding value of A1 Certificates-impact on employment related breaches” released on June 14, contains reference to the Belgian Court of Cassation ruling in VERBRAEKEN EN ZONEN BVBA (P.21.0738.N of 19 October 2021). In VERBRAEKEN EN ZONEN BVBA, confirming its previous position, the Court of Cassation held that the Dimona (immediate declaration of employment)…
Binding value of A1 Certificates-impact on employment related breaches
In Bouygues travaux publics (C-17/19, EU:C:2020:379) the European Court of Justice (ECJ) ruled that A1 Certificates are binding on the courts or tribunals of host Member States (MS), solely in the area of social security. In simple words, social security subjection in a MS other than the MS in whose territory an individual is employed,…
Concept of employer- third party having interest in the performance of an employment contract
An employment relationship is characterised by the fact that for a certain period of time, a person performs services for and under the direction of another person, in return for which he receives remuneration. The existence of a subordination link is intrinsic to the existence of an employment relationship. Subordination link triggers exercise of authority….
Short duration posting-calculation of remuneration- a real headache?
Intra-EU frequent short duration postings raise a certain challenge: the determination of the applicable terms and conditions of employment, in particular of the remuneration. A relevant example is posting to carry out installation, repair, and maintenance works. Often, one payslip covers activity in several Member States (“sending Member State”, and several other Member States that…
Recast of the Single Permit Directive- what will eventually change?
The proposal to recast the Directive 2011/98/EU, “aims to streamline the application procedure and make it more effective”. The question is what will eventually change? Concept of employer (Article 2) Article 2 contains an autonomous definition of the concept of “employer” (the definition does not contain reference to national law, and consequently must be given…
ECJ- social security legislation applicable to cross-border temporary agency workers
On 17 March, AG Pitruzzella delivered his Opinion on the request for a preliminary ruling submitted by Raad van bestuur van de Sociale verzekeringbank (the Netherlands) on the social security legislation applicable to temporary agency workers residing in a Member State and pursuing an employment activity in another Member State (C-713/20, EU:C:2022:197). The question referred…
Temporary agency work-an outstanding challenge
The European Council meeting of 14 December 2007 (16616/1/07 REV 1) endorsed the agreement on the common principles on flexicurity reached in the Council on 5/6 December 2007. “Flexicurity involves the deliberate combination of flexible and reliable contractual arrangements, comprehensive lifelong learning strategies, effective active labour market policies, and modern, adequate and sustainable social protection…
ECJ ruling- non-payment of the posted workers remuneration
On the basis of a check carried out in 2016, a representative of a Slovakian company was fined for failure to comply with obligations relating to remuneration due to workers posted to Austria. The fine was notified in 2020. In accordance with the Austrian law in the version applicable to the case at hand, the…
Posting of Workers- after-sales service
One of the matters covered by Article 3.1 Directive 96/71/EC amended by Directive 2018/957/EU (Posting of Workers Directive) is the hiring-out of workers, in particular the supply of workers by temporary employment undertakings. The ECJ case-law, national laws and jurisprudence, deal with hiring out of workers by undertakings that are not temporary work agencies (see…
Employment relationship- What is new in (new) EU labour directives
The scope of recently enacted/proposed EU labour directives contains specific reference to the case-law of the European Court of Justice (ECJ): “This Directive applies to all workers, men and women, who have an employment contract or employment relationship as defined by the law, collective agreements or practice in force in each Member State, taking into…
New rules on transparent and predictable working conditions-what will change for posted workers
Member States shall take the necessary measures to comply with the Directive 2019/1152/EU on transparent and predictable working conditions in the European Union by 1 August 2022. What will change for employers posting workers? Article 7(1) lays down the information must be provided by employers to workers sent to another Member State (MS) or to a third country (regardless of…
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