Contenidos

labour regulations

With the exception of social security law, which includes separate standards co-ordinating national systems of social security law of the Member States of the European Union, the confl icts of substantive labour laws have been – and still are – regulated by internal and international rules of private international law.

Th e need to adopt separate standards of private international labour law has been acknowledged by the institutions in a few years after the adoption of Regula-tion No. 1612/68, Council Directive No. 68/360 – internaRegula-tional treaties, adopted on October 15, 1968, guaranteeing employees the freedom of movement within the then European Economic Community. In order to repeal the legal barriers to the free movement of persons within the common market on the June 14, 1971 Regulation No. 1408/71 was issued for coordinating national social secu-rity systems. Th e freedom of movement in order to take up employment under an employment relationship or business self-employment has increased with the adoption of directives to ensure the freedom of transferring capital to entrepre-neurs, technology and staff within the common market within the economic free-dom to provide services and the posting of workers to temporarily perform the work in another Member State. Th e Commission quickly recognised that the free movement of people (workers, employers, job seekers) between the borders of the Member States of the international regional organisation in Europe called the European Economic Community, leads to a situation whereby the local labour market (“intra-Community employment relationships”), located within the ad-ministrative borders of the Member States, in which diff erent national systems of labour law relations exist, where employers are established in diff erent Member States and the workers are nationals of various countries, are all governed by sepa-rate provisions of labour law. National systems of employment law in force in the countries of origin of employees is or is not used by employers in the ordinary course of business in the country or in the Member States within the territory where the workplaces or certain jobs are located in jobs. It was found that the same companies, managed by employers domestic or foreign, in which workers are employed having come from other Member States, employment relationships are governed by diff erent national labour laws. Th ese diff erences in the legal posi-tion of labour relaposi-tions, taking the form of a legal patchwork, which could not be

explained objectively, led to an unjustifi ed diff erentiation of employees, from an equal treatment perspective. I address the problem of the unfounded diff erentia-tion of workers in light of the basic European law of equality. I deliberately do not use the term “discrimination”, as no Member State law or no private international law prohibits employers to regulate labour relations on the basis of diff erent na-tional systems of substantive labour law. Th e phenomenon of discrimination in employment relationships eventuates when an employer applies either criteria that are prohibited by law to diff erentiate workers (direct discrimination) or uses seemingly neutral criteria, that when used, produce negative consequences pro-hibited by law in the case of a large number of employees (indirect discrimi-nation). Indirect discrimination should be regarded as a situation hidden under a seemingly neutral legal criteria for diff erentiation of employees or as a practice used by employers who do not seem to diff erentiate between the powers, duties or privileges because of legally prohibited, openly discriminatory conditions, which leads to non-benefi cial regulation of a social group (or a major part of one) be-cause of the seemingly objective criteria used for diff erentiation. It is an attempt to determine whether jurisprudence uses two indicators when dealing with the issue indirect discrimination in a work relationship. One of them is the number of people aff ected by the condition referred to diff erentiate the legal situation.

Th e latter allows to determine the legal consequences of this diff erentiation. Th e case of indirect discrimination occurs in those situations where on the basis of an apparently neutral criterion of legal repercussions occur in a particular social group, separate on the basis of an apparently neutral criterion of diff erentiation, and aff ect more members of the group.

In a compiled, considered and revised draft regulation, which was reported by the European Commission to the European Council on April 28, 1976 concern-ing the basis of articles 149, paragraph 2 of the Treaty of the European proposal was included in a binding settlement of a confl ict as the substantive law of la-bour force in the Member States.²⁸ In support of this project, inter alia, stated that the criteria used by the rules of private international law applicable in the Member States show signifi cant diff erences. Th e above statement of the European Commission should be taken as contemporary criticism of the legal situation in which the Member States, then the predecessor of today’s European Union could not achieve consistent regulation of confl icts of law rules of substantive labour law within particular Member States. Diff erentiation of the legal position of pri-vate parties to employment relationships, depending on what rules are subject to labour law has been evaluated negatively by the European Commission. In the explanatory memorandum, the reasons for which a draft regulation containing

28 Commission of the European Communities, amended proposal for a Regulation of the Council on the provision on confl icts on employment relationships within the Community, COM (75) 653 fi nal.

a separate confl ict in matters of regulation of private international labour law has been lodged for consideration by the Commission of the European Council, con-cluded that the diff erences between national rules of private international law, in-cluding those which are passed to solve national confl icts substantive labour law, should be seized in order to prevent a situation in which the social situation of employees (who make use of the assured freedom of movement within the Com-munity) will be less favourable. It is not evident in any of the passages of the draft submitted in 1976 by the European Commission explaining what entails less favourable regulations of workers’ rights benefi ting from the freedom to migrate in order to work in another Member State. Comparing the labour laws in force in the Member States one can come to the conclusion that at times labour law in host countries, which welcome workers, are less and sometimes more favourable to labour laws that are in force in the home Member States of the workers. No comparative studies have been conducted on the diff erences in the implementa-tion of protecimplementa-tion and care funcimplementa-tions of labour law in the Member States of the European Union today. From further passages of the draft regulation, which was presented by the Commission of the European Council, one can come to one logical conclusion. Diff erentiation of national rules of private international law applicable in Member States applied in order to deal with national standards of substantive confl ict in labour relations containing a foreign element, is unfa-vourable because it leads to uniform regulation of labour relations of employees employed in the same period in one Member State. Th us, a statement about the negative eff ects of diff erentiation of workers, in particular, their social situation, should be understood as an expression of the European Commission’s attention to all workers, not just those who decided to make use of law as enshrined in primary and secondary standards of European law on freedom of movement of labour.

Various national rules of private international law, including norms indicating the appropriate determinants that determine the choice of the substantive law of the national system of labour had been classifi ed by the European Commis-sion to one of the two confl icting with each model law. According to the fi rst, substantive labour law standards are in the majority of the mandatory nature of the rules, and for this reason are classifi ed as loi de police et de sûreté, and this con-sequently makes the employment relationship is subject to the provisions of the Member State where the work is being conducted. From a procedural point of view, disputes about claims of workers with employment relationships involving a foreign element shall be settled by the competent courts for the place of work (lex loci laboris), in the jurisdiction where the claims were fi led (lex fori). Accord-ing to a diff erAccord-ing view, which lies at the heart of the belief in the absolute nature of labour law, those labour relations, involving an international element should be regulated by labour laws of the Member State of the nationality of the parties which have established these legal relationships. In the absence of a common

determinant, critical for the proper indication of the national system of substan-tive labour law may be granted by the internal rules of private international law, one of the previously described determinants used by the Member State. Accord-ing to the European Commission’s fi rst model of the confl ict of laws used for resolving confl icts of national substantive labour law, which, because of the inclu-sion of a foreign element in these legal relationships, can be applied to regulate these relations and this leads to a choice between national systems set out under one of the determinants used in international private law.

According to the second model, the rules of private international labour law or private international law should ensure that the individual parties to employment relationships involving a foreign element have the right to choose the substantive labour law system. Th e choice of these rules may be limited to the rights associ-ated with the employment relationship. Limiting the freedom of choice of law, which is accepted by the jurisprudence and doctrine of private international law or private international labour law, Member States may be allowed to choose the law governing the employment relationship. Th e term “the law governing the em-ployment relationship” is a formula that indicates the law applicable in the place of work (lex loci laboris). National or international private labour law regulations may also indicate the individual parties to employment relationships involving a foreign element, of the substantive provisions of national labour law in force at the place of the employer in the country of the nationality or domicile by individual employment relationships, either in the country in which the parties entered into a legal relationship.

Of the four previously mentioned determinants deciding on the choice of a national system of substantive labour law involving an international element in a work relationship, the European Commission decided on the choice of place of work as a basic criterion for determining the choice of determinant with which one indicated an appropriate national system of substantive labour law. From this rule, the draft regulation introduced in 1976 provides exceptions formulated within the provisions of Article 48 of the Treaty and the provisions of Articles 7 to 9 of Regulation No. 1612/68 and Regulation No. 1408/71. Th ese provisions of the international Treaties enforced in the EU and international organisations which preceded it, adopt a rule the application of uniform legal standards in the legal relations in a place to work. Th e basic principle of European social security law is to determine the social security relation with the employment relationship.

Th e traditional concept of workers’ social security under in which the insured (workers), the policyholder (the employer) and the policyholder (the state social security institutions), is based on work relations and the national social insurance obligations as introduced by state authorities. Historically speaking, it can be con-cluded that if there was no general obligation to cover the compulsory social in-surance for workers, there would be no social security system. Historical relation-ships between labour relations and social security relations, expressing the same

events that underlie these two legal relationships, each of which is governed by the same or similar criteria, are such that the conditions determining the choice of the proper national system of substantive labour law composed of social security provisions should be identical. Most provisions being appropriate for regulating labour relations and social security provisions in place to work, meet this require-ment. According to the above provisions of the European Commission, Member State nationals should regulate labour relations and social security of employees and insured persons. In the interest of uniform labour law application (including social security as is understood by the Commission) is that all legal relationships under which work is carried out, thereby covering employees by universal, com-pulsory social security schemes organised by the authorities of the Member States, have been uniformly regulated. Th is means, therefore, that the uniform rules ap-plicable in the European Union should apply to workers in a work relationship, who are in fact third-country workers in EU Member States and are covered in that respect by the universal, compulsory system of social security benefi ts. Ac-cording to the European Commission, the freedom of movement for workers be-tween Member States of the European Union should be guaranteed by objective criteria, applicable to all users of equal protection – EU citizens and third country nationals legally residing in EU Member States. Th e principle of equal treat-ment of all employees of the European Union under contracts of employtreat-ment or doing business or service on their own account should be in conformity with a uniform national approach to select appropriate rules of substantive labour law, which apply to binding relations with a foreign element. Presenting the proposal to regulate the rules of private international labour law, the European Commis-sion is guided by the aspiration to ensure the uniform application of those same confl ict rules on matters governed by labour laws that apply to binding relations with a foreign element. A necessary condition to achieve the intended purpose was to regulate in the same way within the European Union standards for con-fl icts of substantive labour law. Th e proposal formulated by the European Com-mission sought to achieve this by establishing fi rstly among the determinants, labour laws binding in the place of work. From the principle lex loci laboris, which – according to the Commission should take precedence over freedom of individ-ual choice by the parties to employment relationships involving an international element – could be waived on an exceptional basis, subject to compliance with the requirements laid down in the Commission’s proposed regulation, 1976. Th e freedom of choice of law should be limited to objective criteria, which also should ensure that if parties to a binding employment relationship decide to select dif-ferent provisions, other than those standards of labour law in force at the place of work ensuring workers the minimum legal protection that are equal to those provided by the labour regulations enforced at the place the work is carried out.

Minimum established standards legis loci laboris should be applied to employment relationships of non-EU citizens who are legally employed within EU Member

States. Failure by the Community institutions and authorities of EU Member States the principle of uniform regulation of binding work relationships – those in which they are nationals of a national employer, the citizens of other Member States and third country nationals employed in the country by domestic or by foreign employers – according to European Commission – is regarded as a highly negative condition, whereby the diff erent national rules of substantive labour law are applicable to regulate labour relations in the European Union. Th e European Commission proposes uniform rules for resolving confl icts of national substan-tive labour law standards to ensure that all employees under labour relations in Member State countries of the EU have the same legal situation. Th is state of af-fairs can ensure lex loci laboris, the rules according to which labour relations in the Member States should be governed by provisions of labour law in force in those countries where the work is done. Uniformity of regulating binding work rela-tions within the EU accounted for conditio sine qua non the existence of a common market. For this reason, the draft regulation submitted by the European Commis-sion has applied without exception to all employment relationships. In fact, the Commission sought to eliminate all diff erences in treatment between the parties to binding employment relationships, irrespective of whether or not there were foreign elements present.

In the draft regulation, which consisted of eight provisions which contain the confl ict of law rules governing confl icts of national substantive labour law, the principles were presented as follows. In Article 1 of the draft regulation it was decided universal application to all employment relationships was to be adapted, under which each party, regardless of nationality, is required to fi ll in the Europe-an Union Member State obligations under a contract of employment Europe-and labour law. Th e provision of Article 1 of the draft regulation of 1976 defi nes the scope of applying subjective and objective confl ict of law norms. All, without excep-tion, labour relations, in the typical and non-typical contracts and established on grounds other than a contract of employment, as well as labour relations, which occurred without grounds, designated under the provisions of labour law, for ex-ample, by engaging employees in the team of employees by a particular employer was subject to the provisions of this regulation. In particular, the proposed regula-tion would also regulate confl icts of legal norms in force in third, countries used for regulating labour relations in which they are nationals of these countries with any employer employing workers lawfully in EU Member States. In clarifying the content and meaning of the regulation used in Article 1 of the draft regulation, it clearly stated that neither the nationality of the individual parties to labour rela-tions, nor the place in which the contract was signed are legally relevant. Of the aforementioned foreign elements, which require the employment relationship to the selection or use determinants to indicate choice of law rules that determine the proper use of national systems of substantive labour law is the most important location of the place of work. Workplace located in an EU Member State makes

the employment relationship, such as is a legal bond, i.e. between employee and employer, is governed by the substantive law of that Member State in which obli-gations under the contract and labour regulations are carried out. Provision of Ar-ticle 1 of the draft regulation of 1976 does not pay attention to the fact of carrying out duties acute to the employment relationship. It sets out the obligations on the individual pages of the employment relationship. Since every employment

the employment relationship, such as is a legal bond, i.e. between employee and employer, is governed by the substantive law of that Member State in which obli-gations under the contract and labour regulations are carried out. Provision of Ar-ticle 1 of the draft regulation of 1976 does not pay attention to the fact of carrying out duties acute to the employment relationship. It sets out the obligations on the individual pages of the employment relationship. Since every employment