UvA-DARE (Digital Academic Repository) [Review of: S. Evju (2013) Cross-border services, posting of workers, and multilevel governance] Cremers, J.M.B. Published in: CLR News Link to publication Citation for published version (APA): Cremers, J. (2013). [Review of: S. Evju (2013) Cross-border services, posting of workers, and multilevel governance]. CLR News, 2013(3), 59-62. General rights It is not permitted to download or to forward/distribute the text or part of it without the consent of the author(s) and/or copyright holder(s), other than for strictly personal, individual use, unless the work is under an open content license (like Creative Commons). Disclaimer/Complaints regulations If you believe that digital publication of certain material infringes any of your rights or (privacy) interests, please let the Library know, stating your reasons. In case of a legitimate complaint, the Library will make the material inaccessible and/or remove it from the website. Please Ask the Library: http://uba.uva.nl/en/contact, or a letter to: Library of the University of Amsterdam, Secretariat, Singel 425, 1012 WP Amsterdam, The Netherlands. You will be contacted as soon as possible. UvA-DARE is a service provided by the library of the University of Amsterdam (http://dare.uva.nl) Download date: 22 Jan 2019
qualification, not jobs, on a scale of differentials ranging from 2,000 to 8,000 euros net per month (Friot, p. 65). How profit-making property is to be abolished is not elaborated in this volume. The individual contributions take different approaches and do not paint a totally coherent picture. But they all support the core message that future socio-economic relations must be built on the tradition of socialised wage relations and removing the detrimental interference of profit-making property. This book ought to be discussed within the ranks of trade unions with a view to expanding their mission and becoming mandatory bodies for all wage-earning citizens with a remit to structure wage scales and protect labour rights. Maybe the ETUI could promote this discussion. Stein Evju (ed.), Cross-Border Services, Posting of Workers, and Multilevel Governance. University of Oslo, Department of Private Law: Skriftserie nr. 193-2013, 320 Norwegian Kroner, ISBN 978-82-7236-229-3, 420 pp. The international, interdisciplinary project FORMULA focused on the Posted Workers Directive and the Services Directive and interconnecting issues and processes. It was devoted to studying EU/EEA labour market regulation in the context of cross-border provision of services involving in particular posting of workers, as indicated by its full title Free movement, labour market regulation and multilevel governance in the enlarged EU/EEA - a Nordic and comparative perspective. The project studied national level developments in this field, both the legal dimension as regards measures, and changes in them, concerning the transposition and application of EU legislation such as on Posting of Workers and the Services Directive, and industrial relations effects such as how market extension and EU regulations influence patterns of interest organisation, power relations, etc. The analysis comprised both a substantive and a governance perspective. Jan Cremers, j.cremers@uva.nl CLR News 3/2013 59
This volume presents contributions from the project's second phase. The authors are all well-known juridical scholars in the field of free movement in the EU. The first two chapters set the scene, the first one (The Formula Project: Introduction and Backdrop) by the editor Stein Evju who introduces the project. According to Evju the Posting of Workers Directive and the related ECJ case law have fundamentally altered the terrain, retreating territoriality in favour of supra-national EU law (p.14). In the second chapter (Labour Market Regulation as Restrictions) Erik Sjödin systematically studies the ECJ case law. Although his analysis is painstaking, there is not much news in the chapter for readers that have followed the academic work related to the so-called Laval-quartet. The following seven (out of eleven) chapters are dedicated to country studies on national responses in Denmark, Germany, the Netherlands, Norway, Poland, Sweden, and the UK national level developments. The aim was to analyse the responses, adjustments and innovations in national labour market regulation (labour and employment laws and collective bargaining, monitoring, control and enforcement of terms and conditions for the mobility of work and services) that have been introduced as a consequence of the European regulations or the increased mobility of labour or services. Chapter 10, written by FAFO sociologists Jon Erik Dolvik and Anne Mette Ødegård, is of a different nature. Their study analyses the role and influence of different actors in the legislative process related to the highly controversial Bolkestein proposal. For more than one reason the legislative decision-making process became a window of opportunities for a prominent role of the European Parliament (assisted by the ETUC). The last chapter is a return to the stricter juridical discourse and analyses the initial proposal for a Services Directive and the finally adopted version of this Directive in a labour law context. 60 CLR News 3/2013
Although the aim was to add new perspectives to the European and international debate on the issues concerned, one can wonder whether the purely juridical controversy is the real and essential battle. Monitoring of posting rules is indeed hampered by the ECJ limitations. But most breaches never become juridical cases. Enforcement lacks strong sanctioning, fines, often of an administrative nature, are weak in an extra-territorial context and in most countries there are no specific posting-related enforcement instruments. A recent project of the labour inspectorate (led by the French organization INTEFP) 1 confirmed that the fraudulent use of posting is often shaped as a circumvention of the national regulatory frame of pay, labour and working conditions and social security in the host state. Forms of circumvention can be cross-border recruitment via (temporary) agencies, sham selfemployment in cases where differences between a commercial contract (for the provision of services) and a labour contract are blurred, fake posting because control is inadequate or easily bypassed and manipulation with free establishment (fictitious companies and arrangements) and country of residence. Control of the regularity of posting and the collection of evidence and supporting documents are hindered by poor registration, a lack of the necessary competence in the host country and the weakness of the existing sanctioning mechanism. Participants in the INTEFPproject often had to conclude that an accumulation of breaches and circumvention was the rule rather than the exception once irregularities were detected. This, of course, raises not only the question how to find justice. As long as registration and notification in the host country are seen as an administrative burden and not as an essential tool to control compliance a proper solution will not be found. 1. A summary report is forthcoming. CLR News 3/2013 61
Therefore, prevention and anticipation has to come from instruments that are labour market oriented and are shaped with and borne by the institutions and bodies that have created the conventional and legislative frame for our industrial relations. The court is the last resort. The primacy of economic freedoms over workers rights in the posting debate is first and for all a political choice. Implementation that is poor makes legislation a paper tiger, legislation that is powerless is worse than no legislation. Notwithstanding this side note, the volume contains a lot of interesting reading. 62 CLR News 3/2013