LIMITATIONS REGARDING THE EMPLOYMENT OF WORKERS IN MEMBER STATES

Italian Version  Employees of the European Community’s Member States, move freely without the old frontiers. National companies may second their employees in other Member  States applying to those workers their own national norms. Labour costs within the Member States vary from State to State. In some cases it is high while in others it is very low. This disparity causes the temptation to cheat in order to override the market rules and the proper and fair competition between the companies.

 In order to function, the European System of the free movement, requires good governance from the Member States’ behalf, but every Member State still owns juridical antibodies so as to react to potential abuses inflicted by other Member States, which may decide to act in a casual way with the purpose of helping the national companies.  The following European Court’s sentence is  the clear proof, having disposed of the administrative authorizations of Bulgaria and having legitimized the intervention of the Belgian administrative authorities.

 The general rule states that people who are gainfully employed in the territory of one of the Member States, are subject to the registration of the mentioned State, even if they reside in another Member State or if the company, or the employer from which it is dependent, has its headquarters, or his residence, in the territory of another Member State.

 There is an exception to this general rule, which is formulated, according to the provisions of Article 14 of the regulation 1408/71: “The individual who is gainfully employed in the territory of a Member State among the company from which he normally depends and is seconded from this company into the territory of another Member State in order to carry out a task on behalf of the above mentioned company, remains subject to the registration of the first Member State, provided that the predicted duration of the job won’t last  longer than 12 months and that the individual isn’t sent to substitute another employee who had finished his period of secondment.”

 The specific case: the Belgian social inspectorate carried out an investigation into the employment of the personnel  of a Belgian private-law company active in the construction sector. It emerged from the inquiry that the company lacked practically completely in personal employees and that it subcontracted all its constructions sites to Bulgarian companies which seconded employees in Belgium. These employees were apparently bearing a certificate provided by the Bulgarian authorities which gave them permission to carry out their working activity in Belgium; during the investigation it was also discovered that the social security contributions weren’t paid by Belgium, but were  deposited in Bulgaria (the amount of money was obviously inferior). It was also proven that the authorization certificates of the employees who worked in Belgium had been fraudulently released by the Bulgarian authorities. In Belgium, the men in charge of the company were legally prosecuted. The European Court called to comment on the case concluded that the national judge may ignore the content of the administrative certificates released by the authorities of other Member States in the event that the workers employed in the jobs had been seconded throughout certificates obtained in a fraudulent way.

 European Court  Grand Chamber  Judgement of February 6, 2018 lawsuit  c-359/2016

Tradotto da Laura Pettinato Devetachi