Abstract
EU private international law regulations are articulated around the ‘habitual place of work’ factor, which does not fit well with the fact that not only are these workers mobile, but their place of work is also mobile. This article critically examines the proxy to this concept developed by the Court of Justice to provide transport workers with access to justice. There are some caveats to the chosen factual approach, in particular its complexity as well as the disregard for the collective dimension of employment relationships, since it can only be undertaken on a case-by-case basis. Moreover, this factual approach does not fit well to all transport sectors. The application of this approach considering the transport worker's domicile/habitual residence might enhance the said access to justice. A similar factual approach is employed in the Posting Drivers in the Road Transport Sector Directive which further compromises worker protection in this sector.
Keywords
Introduction
Workers, as the weaker party to employment contracts and relationships, are granted special treatment not only by domestic contract law but also in the realm of private international law (PIL). The latter seeks to secure access to (conflicts-)justice for cross-border and international workers by making available a close jurisdiction in which to bring their claims and ensure that their contract is governed by the most appropriate law. The European Union (EU) is a case in point, with dedicated provisions on individual employment contracts in both the Brussels I (recast) and Rome I Regulations, 1 as well as in the Posting of Workers Directive (PWD). 2 While the former apply to all workers in cross-border situations, 3 the latter takes into consideration the particular situation of workers whose employers benefit from the free movement of services and temporarily detach them to a EU Member State other than the one where they habitually work. Where applicable, the PWD takes precedence over both PIL regulations 4 entitling posted workers to avail of the international jurisdiction and intra-EU conflict rule enshrined therein.
More specifically, national labour rules distinguish between different types of workers, including, for obvious reasons, those working in the transport sector who are not only mobile workers, but whose place of work is also mobile. However, PIL rules do not focus on their specific working and living conditions, assuming that one size fits all. The reality is different, though, and transport workers face serious problems when it comes to identifying a close and affordable jurisdiction in which to bring their cross-border claims. The key issue is that PIL rules revolve around the ‘habitual workplace’ factor, which is (nearly) impossible to identify in the transport sector, where fictions and variations of the concept have been used to make up for the lack of a tailor-made rule. The next section will explore the challenges posed by this concept when it comes to its application to workers in the different transportation modes. They become apparent in the PWD, which has excluded maritime transport from its scope of application, 5 and been supplemented by the Posting Drivers in the Road Transport Sector Directive, 6 in light of the difficulties in characterising what is a temporary posting for otherwise mobile workers, which will be addressed in the last section of this article.
Worker protection is the prevailing principle in the rules on individual employment matters enshrined in the Brussels I (recast) and Rome I Regulations only to a certain extent given that other principles, such that of proximity, might take over. Nevertheless, PIL rules have been drafted bearing in mind that workers are the weaker party to ‘individual employment contracts’, a concept which has been subject to autonomous interpretation by the Court of Justice. 7 Against this backdrop, and before starting the analysis, two clarifications should be made. The first concerns who is covered by the provisions to be examined, and the second, which matters are covered by them.
As in other sectors, different working arrangements can be found in the transport sector. Remarkably, the Maritime Labour Convention (MLC) of 2006 and the Work in Fishing Convention of 2007 (No. 188) 8 extend their rules to all types of employment and working relationships by defining seafarers and fishers as those who are employed, engaged or work in any capacity on board a ship. 9 The mismatch between this broad definition and the one provided for in the Brussels I and Rome Regulations results in some transport personnel not being considered as employees therein, but as service providers subject to the relevant provisions and thus deprived of the protections devised for those in an individual employment contract. 10 The ratification and implementation of the two Conventions by EU Member States, as agreed by the EU social dialogue, 11 implies that they will have to protect these other workers as well, 12 but through overriding mandatory provisions. However, the extent of this protection remains unclear. 13
In contrast with the PIL regulations, Article 2(2) of the PWD states that ‘the definition of a worker is that which applies in the law of the Member State to whose territory the worker is posted’. As discussed, merchant seafarers are excluded from the scope of the Directive, but fishers, as defined by Convention No.188 will be covered by it. 14 There is certainly an ongoing discussion about the concept of worker, 15 which has already resulted in some steps being taken towards expanding it at EU level. 16 Against this backdrop, and while a common definition is pursued at EU level, the solution provided by the PWD, i.e. referring this definition to the law applicable to the posting, seems to offer more protection than is provided through the PIL regulations.
Having discussed the ‘who’, let us turn to what is covered by the PIL rules under examination. The answer is not straightforward, taking into consideration the fact that both contractual and non-contractual aspects of the employment relationship are closely intertwined to the point that many jurisdictions do not have a clear-cut distinction between them. However, and in view of EU regulations’ characterisation, non-contractual aspects of the employment relationship seem to be covered by Article 4 Rome II Regulation. 17 In the absence of a common habitual residence of the employer and employee, the law of the place where the damage occurs applies unless there is a manifestly closer law, such as the law governing the employment contract. The latter should be prioritised to avoid parties being subject to different laws on closely related matters. As to the jurisdiction rules, they are found outside Chapter II, Section 5, in other provisions of the recast Brussels I Regulation. Still, the forum loci laboris should be prioritised, taking into consideration that the place where damage occurred might be different to the place of habitual work, such as in cases of work accidents in itinere. 18
The conundrum of the ‘habitual place of work’ in the transport sector
The rationale behind the habitual place of work
The habitual place of work was first enshrined as a connecting factor in Article 6 of the Rome Convention, later replaced by Article 8 of the Rome I Regulation. Although choice-of-law agreements are accepted in this provision, they are only effective if they do not deprive the worker of the protection granted to them by the otherwise applicable law, i.e. the law of the place where, or from which, (s)he habitually works or, failing that, the place of the business which engaged the employee (the place of the engaging business). The otherwise applicable law can, however, be excluded by another law considered closer to the employment relationship (by the so-called escape clause). Be that as it may, the law of the habitual place of work is at the centre of this rule because it is predictable for both parties, not easily manipulated by the employer, and it ensures that the mandatory rules governing the employment relationship are applied as the lex loci laboris.
In line with this conflict rule, the Court of Justice built upon the former Article 5(1) of the Brussels Convention the principle of forum loci laboris by which all disputes arising from an employment relationship are submitted to the country where the habitual workplace is located. 19 This provision's transformation into Section 5, Chapter II of the recast Brussels I Regulation involved a qualitative change for worker protection purposes. First, and although party autonomy is still accepted, agreements are not effective if they have not been reached through equal bargaining power, in which case the employee can choose between the courts of the employer's domicile (or co-defendant's domicile if several) and the place where, or from which, (s)he habitually works or, failing that, the place of the engaging business. Second, employees can only be sued before the courts of their domicile.
The same concepts are thus used in different EU instruments, which is why their uniform interpretation is strongly encouraged to enhance interpretative consistency and, of course, consistency between forum and ius, 20 in order to avoid the costs of ascertaining the foreign law. However, it is equally important to remember that they are used for different purposes depending of the type of PIL rules in which they are enshrined. In this vein, worker protection measures apply differently in international jurisdiction rules - where the main goal is access to justice, i.e. different heads of jurisdictions must be made available to the employee-claimant - whereas when it comes to conflict of laws the main aim is to identify the closest law to the employment relationship and thus only one law. 21
The habitual place of work in the transport sector
Employment relationships in the transport sector belong to the complicated cases. The sector operates thanks to mobile workers who perform their activities in different countries and/or in non-sovereignty areas, making it difficult to establish in which country they have their habitual place of work. For such cases, Article 21(2) of the recase Brussels I Regulation and Article 8 of the Rome I Regulation establish a subordinate factor to the habitual workplace, the place of the engaging business. The latter has been strongly criticised because it is easily manipulated by the employer and it is thus seldom applied, in particular due to a broad interpretation of the ‘habitual workplace’ concept based on the understanding that it better embodies worker protection in addition to complying with the proximity principle. 22 Accordingly, the ‘place from which the employee habitually carries out his work in performance of the contract’ (emphasis added) is used as a proxy for the habitual place of work following the application of a ‘circumstantial method’ which ‘makes it possible not only to reflect the true nature of legal relationships, in that it must take account of all the factors which characterise the activity of the employee (…), but also to prevent a concept such as that of “place where, or from which, the employee habitually performs his work” from being exploited or contributing to the achievement of circumvention strategies’. 23
However, it is not easy to establish the place from which the employee habitually carries out their work in transport cases, as is apparent from the Court of Justice's case law, which has already considered three modes of transportation: transport by road, sea, and air. It is eminently factual and thus relies on accumulated evidence that is not always easy to provide or to examine, 24 especially at the time of determining the international jurisdiction of a court. This case-by-case approach also sacrifices legal certainty and compromises the collective dimension of employment relationships to the extent that the ‘habitual place of work’ cannot put all employees working at the same location under the umbrella of the same law taking into account that their habitual workplaces, as determined by this case-by-case approach, might be located in different countries. 25
Transport by road
The abovementioned approach to employment relationships in the transport sector was first established by the Court of Justice in a case involving a heavy goods vehicle driver who was domiciled in Osnabrück (Germany) and had been engaged as an international driver by Gasa, a Luxembourg company, under an employment contract signed in Luxembourg which contained clauses conferring exclusive jurisdiction on the Luxembourg courts, and providing for submission to the Luxembourg Law of 24 May 1989 on contracts of employment and the obligation to make social security payments in Luxembourg. Gasa was a subsidiary of the Danish company Gasa Odense Blomster amba, whose business consisted of transporting flowers and plants from Odense (Denmark) to destinations mostly in Germany, but also in other European countries, employing lorries registered in Luxembourg and stationed in Germany. Gasa did not have a seat or offices in Germany, but after the announcement of its restructuring, its employees established a works council there, to which the claimant was elected. Soon after that, Mr. Koelzsch was dismissed and brought his claim for unfair dismissal before the Luxembourg courts seeking the application of German law and the protections provided to works council members.
Without addressing the question of whether the protection against dismissal granted to staff representatives fell within the scope of Article 6 of the 1980 Rome Convention or not, 26 the Court of Justice concluded that, ‘in the light of the nature of work in the international transport sector’, account must be taken ‘of all the factors which characterise the activity of the employee’ in determining their habitual place of work. 27 In this vein, the seised court ‘must, in particular, determine in which State is situated the place from which the employee carries out his transport tasks, receives instructions concerning his tasks and organises his work, and the place where his work tools are situated. It must also determine the places where the transport is principally carried out, where the goods are unloaded and the place to which the employee returns after completion of his tasks’. 28
Maritime transport
In maritime transport, the workplace is a ship which moves from jurisdiction to jurisdiction and through non-sovereignty areas, with the law applicable on board crystallised by secular tradition. In this vein, the role played by public international law in submitting the internal matters of the ship to the law of the flag state 29 informed, for example, the decision not to include a special rule for seafarers in the 1980 Rome Convention, because it was understood that a correlation between public and private international law could fill in the application of the concept ‘habitual place of work’ and thus submit both public and private matters to the same legal system, that of the flag state. 30 The rise of open registries and the lack of a strong socio-economic link between ships and the countries whose flags they are flying, have put this fiction in jeopardy.
Remarkably, the Court of Justice did not take this context into consideration in the Voogsgeerd case involving a Dutch engineer employed by a Luxembourg company, Navimer S.A., to serve on two vessels owned by the company and operating in the North Sea. His wages were paid by an agency located in Luxembourg, where his pension and sickness contributions were also being paid, and his employment contract included a clause submitting it to the law of Luxembourg. His claim for unfair dismissal was nevertheless based in Belgian law because his contract had been concluded at the headquarters of a different company, Naviglobe N.V., based in Antwerp (Belgium), where he had to go for instructions and where he usually returned at the end of his voyages. While the claimant intended to make use of the engaging business connection, the Court of Justice reiterated the position taken in Koelzsch, stating that it must be established ‘whether the employee, in the performance of his contract, habitually carries out his work in any one country, which is that in which or from which, in the light of all the aspects characterising that activity, the employee performs the main part of his duties to his employer’, 31 and thus ‘the aspects characterising the employment relationship, as referred to in the order for reference, namely, the place of actual employment, the place where the employee receives instructions or where he must report before discharging his tasks’ must be analysed. 32
This circumstantial method fits well with the case of workers employed on board ferries that always sail the same route between countries and who embark and disembark at the same port, where they also provide services. 33 For other cases, and in view of the employment patterns in the maritime sector, it is not clear whether this approach that favours the place of the engaging business is less susceptible to manipulation than the flag state approach: maritime employment is mainly short-term and thus the analysis to be carried out under this test will usually point towards the recruitment and placement service which engaged the seafarer.
Transport by air
The use of a home base rule for aviation was already suggested in the Giuliano-Lagarde report. 34 The new wording of Article 8(2) of Rome I Regulation compared to Article 6 of the 1980 Rome Convention is due to this understanding which was scrutinised by the Court of Justice in the Nogueira et al cases, 35 where the employment policies of Ryanair were discussed. Although it also has own personnel, the Irish company usually hires aircrew members via recruitment and training agencies such as Crewlink, a defendant in the cases, or Workforce International Contractors Ltd., both of whom are based in Ireland. The agencies mainly specialise in the recruitment of cabin personnel, with whom contracts are concluded in English, under Irish law. Given that personnel must provide services on board aircrafts registered in Ireland, these contracts also indicate that the habitual place of work is Ireland, although they designate an airport in another EU Member State (in the aforementioned cases, it was Charleroi) as the employees’ ‘home base’. In the Nogueira et al cases, the employees’ working day started and ended at Charleroi Airport, and they were contractually obliged to reside within an hour of their ‘home base’.
On the question of whether the concept of habitual workplace in the air navigation sector could be treated in the same way as that of a ‘home base’, as defined in the Commission Regulation (EC) No 8/2008 of 11 December 2007 amending Council Regulation (EEC) No 3922/91 as regards common technical requirements and administrative procedures applicable to commercial transportation by aeroplane, 36 the Court of Justice answered in the negative, but left the door open for it to be used as a qualified 37 circumstance while ascertaining ‘in which Member State is situated (i) the place from which the employee carries out his transport-related tasks, (ii) the place where he returns after his tasks, receives instructions concerning his tasks and organises his work, and (iii) the place where his work tools are to be found’. 38 This circumstantial approach has given rise to a variety of interpretations in practice, 39 but it is expected that the home base rule will end up prevailing.
Discussion
Unlike consumers and the weaker parties to insurance contracts, workers cannot sue the other party in their domicile or habitual residence. Instead, they are granted access to the courts of the place where they are supposed to carry out, or have carried out, their tasks. As remarked by the Court of Justice, ‘that is the place where it is least expensive for the employee to commence, or defend himself against, court proceedings’, 40 which might explain why this forum/connection is given such prominence over the place of the engaging business pursuant to the Court of Justice's case law. 41 In the case of mobile workers, the gap in access to justice persists because of the difficulties in identifying the place where, or from which, they habitually work. A problem that has been exacerbated by the recast Brussels I Regulation; by extending their scope to also cover employers seated in third countries, this regulation has made national heads of jurisdiction based on weak contacts with the relevant jurisdiction such as receiving a maritime employment offer or performing some tasks in national territory, 42 not applicable. In order to fill in this gap, the establishment of a forum necessitatis, which allows courts to accept jurisdiction as a last-resort option, has been suggested, but it might not be the best option because of its exceptionality: the problem for these workers is whether the jurisdiction is affordable and not whether they access to or not.
The fact is that the transactional costs of litigating in a jurisdiction other than the worker's place of habitual residence significantly hamper access to justice and this issue is particularly acute in the case of transport workers. The circumstantial approach taken by the Court of Justice to determine the place from which transport workers work might, nevertheless, point to that jurisdiction. In air transport, and despite not acknowledging the so-called home base rule, the Court of Justice's interpretation points to a place where air workers are expected to reside (and even obliged by contract as abovementioned). The same might be said for drivers, 43 although the proliferation of employment agencies in the sector, as in the maritime transport sector, is changing this consideration.
The case of maritime employment remains the most complex because of the employment patterns in the sector and the fact that seafarers can be recruited anywhere in the world thanks to the proliferation of recruitment and placement agencies. A seafarer based in Romania can be recruited via email by a Luxembourg manning agency on behalf of a Greek shipowner, to be employed on a short-term basis on board a Liberian-flagged ship. Neither the Court of Justice's circumstantial test nor the place of the engaging business may indicate jurisdiction for a forum in the seafarer's country of residence. Interestingly, employers can only sue employees in their domicile, meaning that their defence rights are not compromised by such a head of jurisdiction. Hence, it would be advisable to make this head of jurisdiction also available to employees’ claims. 44
Unlike consumer contracts, the law of the worker's country of habitual residence has not been considered because of the role played by the mandatory workplace provisions in governing employment relationships. The strong public regulation in labour matters makes it advisable to have all aspects related to individual employment contracts subject to the law of the habitual workplace in order not to have to apply different legal systems to them. As discussed, a transport worker's residence and the place from which (s)he habitually works should usually coincide following the circumstantial test established by the Court of Justice. However, the complexities of the maritime labour market have caused the MLC to deviate from the flag state principle and allocate social security matters to the country of the seafarer's residence except in cases in which the social protection provided needs to be supplemented by the former. 45 Likewise, the OECD Model Convention on Tax and Income has also changed its approach in favour of the seafarer's domicile. For all remaining issues the MLC still favours the flag state principle, 46 as pointing to the place of the seafarer's habitual workplace. For example, and for inspection purposes, the flag state must issue a Declaration of Maritime Labour Compliance (DMLC) setting out the manner in which it has implemented the MLC in its territory, including for issues such as the seafarer's employment agreement, payment of wages or repatriation. 47 And that is despite all the criticism that the flag state principle has attracted and been reflected in the abovementioned case law of the Court of Justice. 48
If the flag state law is not close to the employment relationship, conflicts-justice might be achieved by resorting to the escape clause, although the latter is applied on the basis of the proximity principle and not the worker protection principle. This protection might be achieved by resorting to overriding mandatory rules 49 which prevail over the law governing the contract if they are more protective of the weaker party to the contract. 50 In the example referenced above, if the Romanian-residing seafarer sues the Greek shipowner in his or her domicile, the applicable law could be Liberian law if the flag state principle is applied; Luxemburg law if the circumstantial test set up by the Court of justice is followed; or, if a closer law to the employment relationship than those already mentioned is found, possibly the law of the place where social security contributions and taxes are paid. 51 Be that as it may, and regardless of the applicable law, the seised court might conclude that the (Romanian) forum's overriding mandatory rules are applicable as more favourable to the seafarer. 52
In view of the room provided for legal divergence by the MLC through the process of implementation into national law, the question can be raised as to whether the overriding mandatory provisions of the lex fori can even be applied in the case that this Convention and their implementing EU Directives have been properly transposed into the lex causae. While noting that the term ‘overriding mandatory provisions’ should be interpreted in a restrictive manner, the Court of Justice has not precluded EU Member States from considering provisions that exceed minimum harmonisation as overriding and thus capable of prevailing over the applicable law of another Member State that has implemented an EU Directive in a less protective manner. 53 In this vein, and although this unilateral approach to worker protection has obvious limitations, it might contribute to filling the gaps left by the difficulties in applying Article 8 to maritime employment matters. It might also be used more generally in other cases involving transport workers taking into consideration that the proximity principle might not get them the protection to which they should be entitled, in particular taking into consideration modern recruitment and placement practices.
The application of the Posting of Workers Directive to the transport sector
Provision of services and posting of workers
The temporary posting of workers in another EU Member State is covered by the free movement of services and not by the free movement of workers. In PIL terms, that means that employment matters relating to posted workers are governed by the law of the country that is their habitual work, i.e. the sending state, and not the law of the country where they temporarily provide services for a user enterprise, i.e. the host state. As laid down in Article 8(2) of Rome I Regulation, ‘The country where the work is habitually carried out shall not be deemed to have changed if he is temporarily employed in another country’. The meaning of ‘temporarily’ is open to interpretation and might only depend on the intention to return to the sending country, as indicated by Recital 36 of Rome I Regulation.
The same rationale is applied by Article 12 of Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems, which lays down the obligation to be affiliated to the social security system of the country that is the habitual place of work if the worker is temporarily posted to another country. However, this provision sets a limit to the concept of temporary. The anticipated duration of work performed in the host country cannot exceed 24 months; otherwise, it will become the country of the habitual workplace for social security purposes. 54 Remarkably, the same worker is obliged to pay taxes in his or her country of habitual work for up to 183 days, passing the obligation onto the host state after this period. 55
Against this backdrop, and as a result of the EU free movement of services, workers with different working conditions can be found in the same workplace, such as a construction site, 56 contradicting many of the reasons why the habitual workplace has been chosen as a head of jurisdiction and as a connecting factor. The PWD was approved to address some of the issues raised by the distortion of competition that resulted from advantage being taken of the services provided in the host state by workers whose working conditions were not as good as those provided for in the host country. To this end, the PWD provided that workers covered by it would enjoy the protection of some minimum labour standards provided for in the host state if more favourable than those applied to their contract by the sending state. It also provided for a special jurisdiction rule to facilitate claims for the application of these standards in the host state and, more importantly, for information and monitoring obligations of compliance for service providers/employers of posted workers.
However, the PWD failed to fully embrace worker protection and several issues remained. The discussion as to whether Article 3 of the PWD gives content to overriding mandatory provisions of the host state or establishes an intra-EU conflict rule has been settled by resorting to Article 23 of the Rome I Regulation, which gives priority to special rules such as those contained in the PWD. 57 There is a mismatch, though, as to their scope of application, first, because of the different approaches to the concept of worker, i.e. while the Rome I Regulation relies on an autonomous concept of individual employment contracts, the PWD refers to the issue to the law of the host country. Second, both lay down a definition of ‘posted’ worker that do not always overlap. As discussed above, the meaning of ‘temporary’ posting is also different from the definitions provided in tax and social security instruments, which has been part of the confusion around when the PWD is to be applied and has informed the guarantees provided in the Enforcement Directive 2014/67 to curtail manipulation of the Directive's provisions. 58
The lack of clarity as to who constitutes a posted worker and what a temporary posting is has given rise to serious problems such as the rise of shell companies and bogus self-employment. In the transport sector, further problems arise because of the difficulties in differentiating between the provision of services within the country from which the worker habitually works, and those provided as part of a temporary posting. The issue informed the decision to exclude seafarers from the scope of the PWD, but other transport sectors are included therein, with those working in transport by road particularly affected by this lack of clarity.
Posted workers in transport by road: the ‘sufficient link’ test
The non-inclusion of those working the merchant navy within the PWD's scope reinforces the conclusion that other transport workers are covered by it, 59 despite the fact that for the personnel involved, the provision of transport services in several EU Member States also characterises their working conditions. 60 Their mobility thus raises the question as to the situations in which they can be considered performing temporary work in another EU Member State from the one in which they are based. The ‘posted worker’ characterisation is further complicated by the fact that not all activities performed in an EU Member State other than the country where the worker habitually works qualify as temporary postings, but only those that have a ‘sufficient link’ with the host country. 61 To this end, ‘an overall assessment of all the factors that characterise the activity of the worker concerned’ must be carried out. 62 Such assessments are particularly complicated for those working in road transport. Accordingly, and for legal certainty purposes, 63 Directive 2020/1057 has been adopted ‘to establish sector-specific rules reflecting the particularities of the highly mobile workforce in the road transport sector and providing a balance between the social protection of drivers and the freedom of operators to provide cross-border services’. 64
Establishing whether transport workers have been posted requires considering a set of indicia similar to those examined to establish the place from which they habitually work. 65 In addition to this circumstantial approach, Directive 2020/1057 takes into consideration ‘the different types of transport operations depending on the degree of connection with the territory of the host Member State’, 66 paying attention to the relationship between the employer and the user undertaking, and not only to the activities performed by the individual worker as happens in the PIL instruments. 67 Accordingly, it modulates the existence of a sufficient link with another EU Member State depending on the degree of connection with the ‘Member State of establishment’ from where the worker is supposed to be posted instead of referring to the country from which work is habitually performed.
Bilateral transport operations, as well as international carriage in transit across the territory of an EU Member State, 68 are not considered temporary postings on grounds of the nature of operations and their lack of connection with a second EU Member State, while cabotage operations, 69 combined transport operations or non-bilateral international operations 70 taking place in another EU Member State might involve a temporary posting. It should be noted that the question of whether these workers are posted or not is still decided using the sufficient link test, 71 which compromises legal certainty and, certainly, the objectives of the Directive 2020/1057 in ensuring the PWD application.
Interaction with Rome I Regulation
The relationship between Rome I Regulation and the PWD does not appear much clearer after the introduction of Directive 2020/1057. The end result might still be problematic because it relies on a factual approach being taken in problematic cases, i.e. as it is done in determining the worker's habitual place of work, which does not facilitate the application of both instruments. The application of both factual approaches might lead to the understanding as temporary which should have been considered habitual, and thus reducing drivers’ protection. 72 That is compounded by the attention paid to the relationship between the employer and the client instead of the services provided by the worker, which might lead to a gap in protection, i.e. temporary relocation to another country does not automatically qualify as posting, and thus does not merit the protection provided by the PWD, which does not help with the elimination of social dumping in the sector.
Moreover, the meaning of ‘temporary posting’ in the Rome I Regulation and the PWD remains different. However, and in view of the problems generated by the duration issue, the PWD has been amended to include a new provision upgrading the protection to be provided to postings that last more than 12 to 18 months and which are meant to benefit from the law of the host state except for the procedures, formalities and conditions of the conclusion and termination of the employment contract, including non-competition clauses, as well as supplementary occupational retirement pension arrangements. 73 Should this provision be understood in the context of Rome I Regulation as an indication that a change in the law applicable to the individual employment contract has happened? That might be the case in order to ensure worker protection, but not necessarily considering the different rationales of both instruments. Be that as it may, the application of the ‘limited time’ requirement in another EU Member State remains complicated in the road transport sector due to the short time spent in the relevant country, which will require an accumulation of periods to apply these rules.
All in all, the interaction between Rome I Regulation and the PWD provides workers with different layers of protection as established by the lex loci laboris, overriding mandatory provisions, and the law of the host country. However, the application of each layer comes with complications to which their interaction is to be added. Is this manageable? Is worker protection achieved by this case-by-case approach? There is no simple answer to this question, but one issue can be raised: the skills of the seized court in managing all this complexity become crucial.
Footnotes
Declaration of conflicting interests
The author declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The author disclosed receipt of the following financial support for the research, authorship, and/or publication of this article: This work was supported by the EUROPEAN COMMISSION Directorate DG Employment, Social Affairs and Inclusion Unit C.1 – Labour Law.
