Regional labour mobility: legal obstacles

1
Regional labour mobility legal obstacles

• Prof. dr. Herwig VERSCHUEREN
• University of Antwerp (UA)

2
Overview

• Purpose pointing at some legal obstacles for the
  smooth functioning of cross-regional labour
  market
• Awareness raising rather than in depth legal
  analysis and specific legal solutions
• Obstacles to cross-border access to jobs
• Differences in Member States social security
  law, labour law and tax law
• Cross-border application of labour market
  activation measures

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Obstacles to cross-border access to jobs (1)

• Free movement for workers (Art. 39 EC Treaty)
• in principle no obstacles allowed any more
• free movement only for nationals of Members
  States (EEA CH)
• Exception transitional arrangement for nationals
  of new Member States still applied by DE and BE
  for nationals of the EU-8 and EU-2 (Romania and
  Bulgaria) and also by NL for EU-2
• These transitional measures do not apply to
  posted workers and to self-employed
• Easy to circumvent? Impact on social rights?

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Obstacles to cross-border access to jobs (2)

• Third country nationals
• third country nationals legally residing and
  working in one Member State depend on
  authorisation for acceding the labour market of
  another Member State
• Even for non-EU members of the family of an EU
  national
• under Dir. 2004/38 only free access to the labour
  market of the State of residence not of the State
  of work
• Discrimination on grounds of nationality if you
  compare with non-EU members of the family of
  nationals of the State of work

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Obstacles to cross-border access to jobs (3)

• Third country nationals
• Facilitating access to labour market for long tem
  residents (after 5 year) (Reg. 2003/109)
• no right to free movement
• Proposed Blue card directive holders of the blue
  card in one Member State may not automatically
  work in another Member State
• still under discussion
• Third country nationals may be posted cross the
  border
• Role of temporary employment agencies

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Differences in social security systems of Member
States

• Member States remain solely competent for social
  security
• Great diversity with regard to conditions for
  coverage, conditions for entitlement to benefits
  and level of contributions (for both employers
  and employees)
• Going to work in another Member State means
  normally becoming subject to a different social
  security system
• Is not considered as such as being a legally
  unjustified obstacle to cross-border labour
  migration
• EC Regulation 1408/71 (in 2010 Reg. 883/2004)
• Social security co-ordination system

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EC social security co-ordination

• Promoting or hindering cross-border access to the
  labour market?
• Mostly promoting by taking away adverse effects
  of national law such as
• waiting period for benefits (unemployment
  benefits, sickness benefits)
• Residence clauses crucial for frontiers workers
  (family benefits)
• Still remaining problems in relation to a
  smoothly functioning cross-regional labour market

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EC social security co-ordination some remaining
problems (1)

• Lex loci laboris workers subject to social
  security system of Member State of work (even if
  residing in another Member State)
• Reflects principle of equal treatment
• Less appropriate for short term migration (which
  occurs more frequently) changing of system could
  discourage cross-border labour migration
• Should there be a possibility of choice?
• Use of posting provisions via temporary work
  agencies
• Use of home-working rule
• Working simultaneously in two MS MS of residence
• Might not be appropriate for marginal activities
• Article 17 agreements policy decisions

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EC social security co-ordination some remaining
problems (2)

• Payment of unemployment benefits when looking for
  a job in another Member State
• Limited for 3 months cumbersome administrative
  burden (reduced in Reg. 883/2004)
• No real cross-regional labour market
• Depends on local policy measures
• Unemployment benefits for frontier workers
• In principle State of residence not State of
  former employment (unless in case of partial or
  intermittent unemployment see also Miethe cases)
• Not in all circumstances best option for
  reintegration into the labour market

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EC social security co-ordination some remaining
problems (3)

• Part-time frontier workers
• Are they entitled to the full coverage under the
  legislation of the MS of employment?
• See Geven judgement of the ECJ
• Pre-retirement benefits resulting from industrial
  agreement
• not covered by Regulation 1408/71
• Co-ordination with unemployment benefits
  continues to be problematic (for instance
  part-time pre-retirement in Belgium)
• Occupational pensions
• Not covered by EC Regulation
• No guarantee that entitlements can be maintained
  in case you go working in another Member State
• Commission proposal pending

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EC social security co-ordination some remaining
problems (4)

• Not always correspondence with bilateral tax
  agreement
• May impact on net salary if persons are not
  subject to social security system and tax system
  of one single Member State
• Need to strengthen correspondence
• See new bilateral tax agreement between BE and NL
• Still remaining problems
• Not always correspondence with labour law
• Obligation for employers to continue to pay sick
  employees and the corresponding waiting period
  for an invalidity benefit
• May result in a gap no sickness benefits in
  State of employment and not (yet) a pro-rata
  invalidity benefit in the State of former
  employment

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Active labour market integration measures

• Cross-border application not always guaranteed
• Reintegration measures for unemployed persons
• For instance bonus for 50 employees when they
  re-enter the labour market
• What about re-entering the labour market cross
  the border?
• What about a 50 employee coming from another
  Member State?
• Salary subsidy for employers recruiting some
  categories of unemployed persons
• What if the employer is located cross the border?
• Occupational training and re-integration
• Are national measures (support/benefits) also
  provided for if training or re-integration takes
  place in another Member State?

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To conclude need for impact assessment and
support

• Complexity of legal and administrative positions
  of cross-border workers and their employers
• Unavoidable
• Necessary to assess the impact of national and
  regional measures/policy on cross-border labour
  markets
• Further and continuous need for professional
  advice and support
• Local and national initiatives
• European initiatives Eures-advisors