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Summary

There are several public inspection authorities operating in the field of road transport in Finland. The Centre for Economic Development, Transport and the Environment is the competent authority for market access. It grants for example community licences and driver attestations. Police and Customs are responsible for roadside checks. They also control road safety, cabotage transport and social legislation relating to driving times and rest periods.

The Occupational Safety and Health Administration (Labour Inspection) oversees labour law as a whole, including the posting of workers and the health and safety provisions. It also carries out company checks to ensure that the social legislation relating to driving times is respected. Apart from that, labour inspectors also oversee the contractor's obligations which apply to all fields of business. As a whole, there are over 370 labour inspectors working in the field. In 2014, they carried out 25,000 work site inspections, over 1,000 of which were focused on the road transport industry in one way or another.

Labour inspections focus on actions that limit the grey economy and promote longer working careers. The concept of the grey economy also covers aspects of social dumping. Part of the problem of the grey economy is the failure to comply with the rules of the labour market. The grey economy is a serious social phenomenon that can only be successfully prevented if public authorities cooperate with each other. Labour inspections are one part of the comprehensive battle against the grey economy.

Labour Inspectorates check in particular whether employers only hire employees who have the right to work in Finland, whether the conditions of employment comply with the law and whether subcontractors have carried out their social obligations. Monitoring health and safety regulations is also part of the fight against the grey economy. Indeed, undue financial benefit may be gained if health and safety regulations are deliberately ignored.

Labour inspectors can only impose administrative measures. If shortcomings are noticed at the workplace, the inspector can issue a written recommendation or an improvement notice. An improvement notice may be issued only in specific situations and it can lead to a binding administrative decision. Particularly when it comes to matters of labour law, written advice is the only way to remedy an illegal situation.

Summary

OPEN QUESTIONS AND THE ROLE OF EU LAW

The crossroads between arbitration and insolvency has been traditionally qualified as an “intriguing” intersection. This expression encapsulates the difficulties of identifying the effect that the opening of insolvency proceedings has on the arbitration commitments of the insolvent party in an international setting. This is a multifaceted question, which includes issues relating to arbitration agreements, proceedings and awards.

Firstly, it is possible for a declaration of insolvency to deprive the arbitration agreement of its validity and effectiveness, or to subject its operability to the approval of the insolvency court. It is also possible for the trustee to be deemed a party alien to the agreement and therefore not bound by it. Doubts might also appear regarding the trustee's authority to conclude new agreements on behalf of the estate.

Secondly, the insolvency might also cast doubt on the possibility of continuing pending arbitration proceedings and, if proceedings do continue, under what conditions. For instance, it would become necessary to examine the level of participation of the trustee, the compatibility between the requirement of confidentiality and the collective interest in the outcome of the dispute, and the availability of interim measures against the assets of the party subject to insolvency proceedings.

Finally, the financial difficulties of the debtor will affect the viability of the awards resulting from the arbitration. One of the major concerns in collective proceedings is the need to shield the insolvent estate from individual enforcement actions. Notwithstanding national peculiarities, this is the most relevant manifestation of the principle par conditio creditorum. The need to respect this principle requires evaluating the operation of national and international instruments that seek to facilitate the cross-border effectiveness of arbitration awards. Among them, the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards plays a prominent role. Equally, there might be effects on the possibility of setting aside the award and on the pro-arbitration regime that generally lies behind the resolution of those actions.

Summary

INTRODUCTORY REMARKS

The purpose of this chapter is to rethink some of the new restrictive developments that affect the free movement of persons in the European Union within the context of the current economic crisis, in order to discern to what extent they could be eroding European citizenship.

With the purpose to achieve this goal, the present work focuses on three main questions. Obviously, they are not the only problems that the clash between the economic crisis and the freedom of movement of persons has brought about, but in my view they are the main ones. As a starting point, I set forth some brief reflections on the socio-economic context of the present crisis. I then deal with the new developments that are restricting the right to free movement of persons beyond the limits legally established in EU law. Thirdly, I examine some factual counter-arguments and a legal paradox with which we may question the previously exposed restrictions on the free movement of persons. Finally, some tentative (not definitive) conclusions are drawn concerning the negative effects that the new developments are having on the configuration of the EU citizenship.

Despite this being a highly topical issue, in my opinion there is no doubt that most of these questions will continue to be at the core of the European integration process even when the economic crisis is over.

SOME BRIEF REFLECTIONS ON THE CURRENT CRISIS AS A STARTING POINT

Authors as important as Habermas for German legal doctrine or Sanahuja for the Spanish have noted that, in the last decade, the EU has undergone not only a deep economic crisis but also a real “existential crisis”. The impact, significance and scope of this crisis are still to be determined. However, it seems unquestionable that the crisis is seriously affecting one of the cornerstones of the process of European integration, the right of free movement of persons, and especially the interpretation of its limitations.

Summary

INTRODUCTION

In this contribution we will discuss how the European construction leads to social dumping practices. Even though the focus is on the road transport sector, our analysis and some of our proposals also apply to other sectors.

Because of its very nature the transport sector is one of the key industries of the European internal market and a textbook example for the analysis of the functioning of the European Union.

Since the beginning of the liberalization process in the 1990s and the ensuing ever-growing competition, the road freight transport sector has undergone several major changes. Th anks to EU regulations, cross-border transport enterprises came into existence. By establishing a company in Eastern Europe, it is easy for road transport operators to use East European lorries and drivers in Belgium, not only to organize international transport but also for domestic transport activities. As a result of the introduction of cabotage rights on 1 July 1998, all businesses within the EU can offer transport services in a host Member State. These changes became even more prominent aft er the enlargement of the EU in three steps, i.e. in 2004, 2007 and 2013, with thirteen new Member States.

The policy and the legislation of the European Union were and are almost completely imbued with the further development of the liberalization process. No equivalent attention has been paid to social rights or upward social harmonization in the field of employment and working conditions.

The differences in terms of labour and social market structures in the EU countries are huge. The launch of an internal market and a common transport policy, together with the extension of the EU to the south and the east, in combination with weak enforcement, is the ideal breeding ground for social dumping practices. These practices raise serious questions with regard to the content and effectiveness of the European legislative and enforcement schemes and have consequences for the social rights of both resident and non-resident professional drivers. Moreover, there is the danger that as a result of “social policy regime competition” between Member States, national governments will be put under pressure to lower their employment and social standards in order to cut the high wage costs for companies.

Summary

INTRODUCTION

When the Finnish government embarked on a battle against the grey economy in 2011, commercial goods transport was defined as one of the focus areas. This reflected in Finland's revised Act on Commercial Haulage of Goods by Road (21.7.2006/693), which came into force in two phases in 2013 and 2014. Customer liability was introduced in the first phase.

Since 25 April 2013, Finnish customers of haulage companies are obliged, before concluding a transport contract, to verify that for example:

Summary

INTRODUCTION

Courts and judges are key elements in any legal order. The general rules created by the legislator aim to resolve social conflicts, but in order to achieve this goal it is necessary to transform these general rules into specific obligations. Of course, this transformation of general rules into specific obligations is done not only by the courts but also by any other legal actor (lawyers, notaries, officials, etc.) and by individuals; but the position of courts is a special one.

Courts not only identify specific rules deduced from general rules, but also transform these “deduced” specific rules into positive norms (specific norms). It is possible to deduce specific prescriptions from a general rule or from a set of general rules. Anyone can, as an intellectual activity, determine the result of confronting a specific fact with general rules, i.e. which is the specific norm in a specific situation taking into consideration the applicable set of general rules, but this specific norm is not yet a positive norm; it is not a part of the “formal” set of rules. To be considered a positive norm, and not merely a deduced rule, some kind of “formalisation” is necessary. The administration and the courts are entitled to develop this formalisation process, which involves introducing positive individual norms into the normative system. It is claimed that these norms are merely deduced from the general rules, but they are part of the positive legal order not because this deduction, but because of their formalisation by the administration or the courts. In some cases, these specific norms can be expelled from the normative system as a consequence of a formal decision, but without this formal derogation, the specific positive norm must be considered part of the juridical order, even if it contradicts the general rules that should have been applied in the creation of the specific rules.

Summary

LABOUR MARKET AS AN INTEGRAL PART OF A BROADER CONCEPT OF THE MARKET

The Treaty on the Functioning of the European Union (TFEU) defines the internal market in Article 26 as “an area without internal frontiers in which the free movement of kgoods, persons, services and capital is ensured”. These four fundamental freedoms form one of the cornerstones of the EU and constitute the basis of the internal market.

The labour market, which is one of the aspects of the free movement of persons within the EU, is thus framed in the broader concept of the internal market. The labour market in general, as well as labour market rights, cannot be separated from other markets that have been established and promoted in current capitalist society. So the labour market is an integral part of a broader concept of the market. This concept is understood as the “selling and buying of commodities”. There are goods and services markets, a capital market, different submarkets and supramarkets, etc. We are living in a (perhaps social) market economy. Actually, the entire society is transforming into a market society. Under the pressure of economic (neo)liberalism, everything is gradually becoming a commodity (or, to be more exact, everything is treated as if it were a commodity). This process is oft en described as a commodification.

When speaking about the labour market(s) within the EU, one has to ask the question whether a single EU labour market really exists. The relationship between the national/regional/local labour markets and the EU labour market, as well as the relationship between these labour markets and the global labour market, is very important and must not be neglected. They interfere with each other, overlap each other and compete against each other.

Another introductory remark has to be made in relation to the terminology that is used in connection with the notion “labour market”. Usually, a distinction is made between the “free” labour market, the “regulated” labour market and the “rigid” labour market. The “rigid” labour market is supposed to be the one that is “over-regulated”. However, it has to be emphasized that the terminology is never value-free. All types of labour markets are regulated and it is not true that a “free” labour market is less regulated.

Summary

INTRODUCTION

The European Union distinguishes itself in the first place by its internal market which guarantees the free movement of goods, services, capital and labour (Articles 26–66 TFEU). As regards labour migration, the EU internal market makes it possible for employees to go and work in other Member States or to be posted there by their employers, in the context of the freedom to provide services across the border. The internal market also influences the definition of the territorial scope of national labour law, in particular when there is a crossborder aspect. Moreover, the increasing occurrence of cross-border elements is an unavoidable consequence of the growing European market integration. As a result there can be circumstances in which work carried out on the territory of a certain Member State is not necessarily subject to that Member State's labour law. These restrictions on the application of the host Member State's labour legislation on its own territory undeniably puts pressure on the level of protection in this Member State. In the same vein, these restrictions offer employers from sending Member States the possibility of taking competitive advantage of the differences in employment protection and costs.

This chapter looks into the question of to what extent European internal market law has influenced the territorial application of labour law. First we will give an outline of the origins of the principle that labour law continues to be a matter of national competence (section 2). Subsequently, we will examine the European rules and case law relevant for the definition of the territorial scope of national labour law (section 3). This includes the legislation on the freedom of movement for workers, the rules of private international law (PIL) as well as the case law of the European Court of Justice (CJEU) regarding the freedom to provide of services. We will pay special attention to the meaning of Posted Workers Directive 96/71 and analyse how this Directive and the case law of the Court of Justice relating to this are at the crossroads of legal rules and economic interests. Finally, we will draw some conclusions on the ensuing competition between workers in the European internal market (section 4).

Summary

THE NEW PARAMETERS OF LEGAL CERTAINTY AFTER 2007

The question of legal certainty was relatively stable in EU law before 2007. It was a general principle of EC law, operating mostly in certain legal domains, and mainly through the lens of the protection of legitimate expectations. This does not mean that it was a trouble-free issue. Legal certainty as such is a convoluted notion because of its multiple components, some of them very close to the foundations of a legal order since they are clearly connected to the rule of law and fundamental rights. Legal certainty thus requires rules to be clear and precise, but also involves predictability in both legislation and adjudication. Finally it seeks substantive acceptability of concrete legal decisions as well.

However, it is submitted here that three different aspects have changed over the years that have transformed the parameters within which legal certainty operates in EU law: the potential impact that the entry into force of the Lisbon Treaty may have had on that general principle (section 1.1); the enlargement of the scope of legal certainty because of the legal weaknesses involved in the EU response to the crisis (section 1.2) and, finally, the relevance of emergency law for legal certainty and legitimate expectations (section 1.3).

THE IMPACT OF THE TREATY OF LISBON ON LEGAL CERTAINTY

The entry into force of the Lisbon Treaty in 2009 runs parallel to the outbreak and evolution of the financial and economic crisis. These new rules governing the EU have as such remained unchanged, except for the slight modification of Article 136 TFEU, which some have even deemed useless in line with the Pringle ruling.

This Treaty has had a major impact on legal certainty in two particular ways. In the first place, it has led to its partial codification and therefore legal certainty no longer works in EU law only as a general principle. Thus, we need to evaluate whether or not this major formal change should be reflected in our understanding of legal certainty itself.

Summary

INTRODUCTION

In times of economic recession, companies resort to restructuring as an efficient tool to overcome financial difficulties. Changes of legal structure, such as transformations, mergers, divisions and global or partial transfer of assets and liabilities may offer a solution to re-balance the economic situation of a firm. One of the typical consequences of such restructuring is the universal transfer of assets and liabilities, by operation of law, from one company to another. This may include assets located abroad or contracts and liabilities governed by foreign law. The purpose of this chapter is to analyse the conflict-of-laws problems caused by these types of operations and to suggest some proposals, from a de lege ferenda perspective, to solve them. It pays particular attention to the current EU legal framework on such transactions.

INDIVIDUAL VERSUS UNIVERSAL TRANSFER OF ASSETS

Most EU legal systems envisage the difference between individual and universal transfers of assets.

INDIVIDUAL TRANSFER OF ASSETS

Individual transfers refer to transfers of an asset, a contract or a liability utisinguli. These transfers entail a singular succession from the transferor to the transferee (Einzelrechtsnachfolge), and are governed by general rules of civil and commercial law. Thus, for example, according to the Spanish Civil Code, the assignment of liability claims requires the consent of the counterparty. Since the features of a debtor, in particular its financial solvency, may be a key element for its creditor, a change of the former must not take place against the will of the latter. With regard to assets, an individual transfer of a tangible asset requires a valid contract and the delivery of such asset. Until these requirements are met, the asset remains in the transferor's patrimony.

Example. If A has concluded a contract with B and wants to assign such contract (rights and liabilities) to a third party, according to the Spanish Civil Code (CC), B's consent is required (Article 1205 CC). This is also the general rule in other legal systems. If A wants to transfer the property of a tangible asset to B, according to the Spanish Civil Code both a valid contract and the physical delivery of the asset (traditio) are required (Article 609 CC). In other legal systems either a valid contract or the physical delivery (with an agreement to transfer the property) may be sufficient.

Summary

INTRODUCTION

In the light of the labour market reforms currently being carried out in Europe, the symposium “From social competition to social dumping. The workers’ right to human dignity at stake”, organized by Prof. Dr Marc Rigaux of the University of Antwerp on 20–21 November 2014, could not have come at a better time.

The changes in labour law and labour law policy at the European level may be affecting the workers’ right to dignity in employment relations, whose origins, in terms of law, date back to the nineteenth century. It is my belief that respect for the principle of human dignity is of the utmost importance if we want to avoid the negative effects of these labour law reforms on workers’ standard of living.

In this contribution, I will focus on the principle of human dignity as laid down in the Charter of Fundamental Rights and in the Treaties of the European Union. I will also refer to declarations or background documents of related legislation in the Union.

I will end this contribution by emphasizing the need to incorporate human dignity as a transversal principle of labour law and the exercise of fundamental rights and the Community freedoms derived from it. To this end, I will argue that the dignity of workers must be a dogmatic concept to be used against the economy-oriented theories that are reshaping the workers’ rights, and also that the value of human dignity is intrinsic to the economic liberties presented in the constitutional treaties of the European Union.

HUMAN DIGNITY IN THE CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION

In the preamble to the Charter, human dignity is referred to as one of the indivisible, universal values upon which the Union is founded. By establishing the citizenship of the Union and by creating an area of freedom, security and justice, it (and I quote) “places the individual at the heart of its activities”.

Not only do these foundations possess supporting or legitimizing characteristics, they also govern the actions of the Union. In other words, they constitute the criteria and guidelines for the actions of the EU institutions.

The financial crisis has literally stress tested the European Union and indeed continues to do so. It has already laid bare many fundamental issues and conundrums of the European Union and the European Union's legal system that had been waiting to be seriously addressed for quite a number of years.This book examines the consequences of the financial crisis for European Union law not only with respect to various specific areas of the law, namely contract law, company law, capital markets law, banking law, competition law, tax law, insolvency law, but also with respect to fundamental issues regarding the role and function of the European Union and European law.

The economic unification of Europe has created a lot of victims. The realization of the single market has taken place without any adjusting or accompanying economic and social policies. Its effects on social and human relations go far beyond the economic and commercial areas its authors had in mind. It has in fact led to changes in European society that are so far-reaching that they could very well be characterized as mutations. This book looks at the phenomenon of social dumping in the wider context of liberalized social competition as steered by the European Union. It contains a number of testimonies by people who actively fight social dumping, with special attention paid to the harrowing dumping practices in the road transport sector. Some of the authors also examine the phenomenon of social dumping in relation to compliance with the fundamental right of all workers to respect for their dignity as human beings. In this respect, the underlying question is whether, by tolerating legislation that allows human dignity to be violated by social dumping, the European and national legislators in fact infringe on this key fundamental right. This book is intended for practitioners, academics, researchers and policy-makers working in the area of social policy. With academic contributions from Marc Rigaux, Wolfgang Daübler, Jan Buelens and Lies Michielsen, Herwig Verschueren, Barbara Kresal, Gian Guido Balandi, Fieke Van Overbeeke, Ferran Camas Roda and Walter Gagawczuk. The book concludes with a number of testimonies from the field.

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Chapter 11 - The National Legal Battle against Social Exploitation. National Practices of Finnish Labour Inspection

Summary

International Arbitration and vis attractiva concursus

Summary

PART I - RESCUE MECHANISMS AND MONETARY POLICY

New Developments on the Free Movement of Persons in the European Union in a Time of Crisis. Eroding the European Citizenship?

Summary

List of Abbreviations

Frontmatter

PART IV - THE FINANCIAL CRISIS, CONSUMERS AND CONSUMER LAW

Chapter 3 - Social Dumping: A Symptom of the European Construction. An Exploratory Study of Social Dumping in Road Transport

Summary

Chapter 10 - Fighting the Grey Economy with National Legislation. The Case of Finland

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The New Role of Judges in the EU. Going Back to the Middle Ages

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Chapter 5 - The Tense Relationship Between Labour Market Rights and Respect for Dignity at Work: European Dimension

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Contents

PART VIII - REFLECTIONS ON THE IMPACT OF THE FINANCIAL CRISIS ON THE GENERAL EUROPEAN LEGAL FRAMEWORK AND THE FUNDAMENTAL “EUROPEAN IDEA”

Chapter 4 - The Territorial Application of Labour Law in the EU Internal Market. On Legal Rules and Economic Interests

Summary

Legal Certainty after the Crisis. The Limits of European Legal Imagination

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Chapter 9 - The National Legal Battle against Social Exploitation in Austria

Universal versus Individual Transfers of Assets and Liabilities. A Conflict-of-Laws Perspective

Summary

Chapter 8 - The Right to Human Dignity: Ultimate Limit to Social Competition and Market Freedoms

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EU Law after the Financial Crisis

From Social Competition to Social Dumping

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EU Law after the Financial Crisis

From Social Competition to Social Dumping