Lecture 1 of the Course European Law, Utrecht University (2016/2017) 

European Law: Lecture 1, 14-11-2016,

The freedom of establishment & free movement of services

Sybe A. de Vries

The course will include the social dimension of the internal market. We are going to focus on the freedom of establishment & free movement of services. It all started with the freedom of goods.

Set-up for the lecture: What is actually happening in Europe? This is the context of this course. We’re going back to the basics for free movement, what are the basis principles, and we will be zooming in at establishment and services.

Context

Just after the second World War (1956), Churchill pleaded for a united Europe. We know now that the situation is really different, with the Brexit, but also with other Party leaders, pleading in favour of leaving the European Union. Why do we have the EU in the first place and why do we have an internal market? What was the aim of the common market and political cooperation? The main aim was that a Third World War should be prevented.  Creating peace was and has always been the core of the European project. This is very important still, now that a lot is changing, for example now that Trump is going to be president of the United States of America.

What is going to happen after the Brexit, for the internal market? Europe is currently in a crisis. What is the effect of Brexit? Video:

• The free movement of goods: 50% of the trading goods is with the EU, so there will be costs of loss in investment, development and innovation. The UK will have to comply with all the regulation that the EU has laid down. The UK would have to negotiate each deal independently. Other countries will be dealing with a small country, instead of a big supranational organisation.
• The free movement of persons: 600.000 persons immigrated to the UK. The majority of those people came from outside the EU. Those migrants who will be working in the UK, what will happen to them? Secondly, what about Britains wanting to work in other EU countries, of people who want to go on holiday? Right now they have the right to move, to receive medical healthcare or use roaming in other EU countries. This will all disappear. There will be costs for a number of people. The UK will be able to control the borders; the EU immigrations will pay taxes. Immigration is based by economic growth, there will be a demand for labor.
• Free movement of services: Many large companies are based in the UK and provide services to other States, like
.....read more

Lecture 3 of the Course European Law (2016/2017), Utrecht University. 

Lecture 3, The Area of Freedom, Security and Justice

We have to try to understand the reasons for why we have an area of freedom, security and justice. How does that function? That is legislation. And then the look at the powers that have been given from the Member States, to the EU. The European Union is what the Member States decided to give to the EU.

Why do we have the AFSJ?

Before the EU, there was an European community. When you wanted to cross the border, you had some time to spend hours in the traffic jam. Some Member States decided that it would be good to abolish the frontiers between the Member States. In 1985 (Schengen-agreement) principles were laid down between Luxembourg, Belgium, the Netherlands, France and Germany. In 1990 there was the Convention on the Implementation of the Schengen agreement.

There were things needed to open the borders. There was a need for compensatory measures to address:

• Asylum and immigration (not all people are welcome in the Member State)
• Border controls
• Criminal activities (criminals can move easily when there are no borders)
• Civil matters (marriage with a foreign person)

If you open the borders, then you will have all kind of problems to address. It would be nice to use that we had by this time, the institutions to implement these rules.

There was a formal intergovernmental cooperation in Justice and Home Affairs (JHA), with specific legal instruments, unanimity, and a limited role of EC institutions. This was followed by the Treaty of Amsterdam and Treaty of Lisbon.

The Justice and Home Affairs cooperation became more supranational after the Treaty of Lisbon, and became Area of Freedom, Security and Justice (Part III, Title V TFEU). Rules before the Treaty of Lisbon have no direct effect (Protocol N. 36, Article 9).

The AFSJ is an objective of the EU.

The Treaty defines the AFSJ as one of the objectives of the EU. This is also dressed in article 3(2)TEU: ‘’The Union shall offer its citizens an area of freedom, security and justice without internal frontiers, in which the free movement of persons is ensured in conjunction with appropriate measures with respect to external border controls, asylum, immigration and the prevention and combating of crime’’......read more

Lecture 5, European Law (2016/2017), Utrecht University

European Law, Lecture 5

19 december 2016, Posting of workers

Today we will discuss the posting of workers. This is when an employer sends an employee to another Member State to provide services or to start working there. The last weeks of the course we will discuss the social benefits of the European law, like for example European labour law.

Article 45 TFEU

The rights that were discussed in the earlier weeks of the course: The free movement of workers (art. 45 TFEU) to work in another Member State, to reside in another Member State under certain conditions (there must be an economic activity, in subordination and for remuneration, en not in the public service). Employees should be protected by this article of the Treaty; there may be no discrimination based on nationality (Article 7(2) Regulation).

Posting of workers

Posting of workers is the activity from an enterprise of sending employees to work in another Member State, to work for another enterprise (posting). For example, Hans is working in the Netherlands for a container-company, he gets send to Germany to work there for another container-company (providing services). The employee Hans is sent to another Member State, to provide services for another company.

The social protection is different from the rights of article 45 TFEU. This leads to the question: might this have negative consequences for the Member States (whether there would be a conflict between different social models in Member States) and lead to social dumping and unemployment for the nationals in that Member State?

Case law on the posting of workers

The Rush Portugesa case (C-113/89): The question arose about the protection that was given and if it was allowed to give the employees lower wages. A Portugese company brought Portugese workers to work in France before the free movement of workers was allowed. The French authorities imposed a big fine because the company did not have work permits, they did not comply with the Regulations. The Case was brought before the Court and the Court rules: These workers were brought on the basis of free movement of services. They are not workers in the sense of article 45 TFEU. Also the criteria and rules.....read more

Utrecht University, Lecture 7 of the Course European Law (2016/2017). 

European Law, lecture 7

Transfer of enterprise & collective redundancies (16 January 2017)

The last topic of the course is the transfer of enterprise and collective redundancies. There are Directives on this subject. Because open markets can also lead to negative effects for employees, there is a restructuring needed of enterprises and transfer of enterprises to other countries. Europe needed a ‘social face’, given by Social Action Programme of the European Commission in 1974.

Most of the lecture will deal with the transfer of undertaking.

Transfer of undertaking

The transfer of undertaking is a Directive, adopted in 1977 and changed in 1998, and later changed in 2001 (Directive 2001/23). The Directive sets some social conditions. It’s about the protection of the rights of employees in case of transfer of undertakings. But what protection is given? There are three main rules which need to be protected. The workers’ rights need to be safeguarded. Firstly, the contract of employment which the employee had with the transferor on the date of the transfer shall, by reason of such transfer, be automatically and completely transferred to the transferee (article 3(1) Directive 2001/23). Secondly, the transfer of an enterprise is no reason for dismissal of the employee. Finally, workers representatives must be unformed and consulted about the transfer of the enterprise.

The Directive needs to be implemented in national law. It is not only applicable in cross border situations, but also in any case as defined by the Directive.

In the Netherlands it is implemented in the Civil Code, in the Title about Labour law.

Main rules:

1. There has to be a change of employership  (Company A is transferring with Company B) There is a change in the legal person which is responsible, the contracts will be changed to the taking over by the new employer.
2. Employees may not be dismissed just because there is a change of employership.
3. There is a right to consultation and information

Maintenance of rights

Member States can provide that, after the date of the transfer, the transferor and the transferee shall be jointly and severally liable in respect of obligations which arose before.....read more