All EU citizens have the right to live and work in another EU country. With the EU’s Eastern enlargement, this right of free movement – one of the Union’s major achievements – has also met with a great deal of criticism. Critics maintain that labour migration from low-wage countries undermines workers’ social standards and is an expression of the Union’s overly liberal approach. They also hold that the transitional periods introduced to protect the labour markets of the old EU countries had ultimately offered insufficient protection.
The EU and its member states are therefore engaging in efforts to readjust the rules in this area in order to curb social dumping in the form of bogus self-employment, the posting of workers and marginal employment. For example, a new version of the EU Posting of Workers Directive was adopted in 2018, which must be transposed into national law by July 2020. “Legislators face the challenge of finding a balance between freedom of movement and social protection in cases like this,” emphasises Michael Blauberger, Professor of European Union Politics at the University of Salzburg.
Social compromise in the single market
In the project “Rebalancing the enlarged single market” (RESiM), Blauberger and his team are conducting a detailed analysis of the new social compromises that have become necessary in face of continuing heterogeneity within the single market. Together with colleagues from the Institute of Intercultural and International Studies at the University of Bremen, the team of political scientists explores the situation in five countries – Germany, France, Austria, Poland and Slovenia. The focus is on three sectors of the economy in which atypical employment models are particularly frequent: the transport industry, 24-hour care and the meat industry – sectors which also came under increased scrutiny in the course of the corona crisis.
Debate on 24-hour care
Foreign care workers in particular, who provide around-the-clock care for the elderly, have become a permanent issue in the debate on EU labour migration. “It is interesting to note that 24-hour care is organised very differently in Germany and Austria – but ultimately leads to similar results for the care workers concerned,” notes Anita Heindlmaier, a post-doctoral fellow at the University of Salzburg who is working with Blauberger on the project. In Austria, care workers are formally self-employed and recruited through agencies – a model that offers ample opportunities for undermining minimum social standards. “There is no representation by trade unions since agencies and care workers are represented by the chamber of commerce,” explains Heindlmaier. Care workers in Germany, on the other hand, are mostly employed by Polish agencies, which post them to the neighbouring country. “This means that they are not subject to German but to Polish social law, which puts them at a disadvantage when working in Germany. Care workers are also worse off when it comes to wages; they are often confronted with contracts that do in fact not guarantee minimum wage,” Heindlmaier adds.
European Court of Justice and political legislation
At the political level, the various forms of labour migration within the EU have been a battleground for a while: for instance concerning the export of family benefits to other EU countries, which is an issue that polarises in Austria, or the Polish workers in Great Britain, who served as an argument for Brexit. Whilst similar studies focus on the legislative processes in this area, the RESiM project opts for a broader perspective. “What sets us apart from other projects is that we look not only at legislation, but also at how policies are shaped by the case law of the Court of Justice of the European Union (CJEU),” explains Blauberger. In its rulings, the CJEU often makes important decisions that have a significant impact on labour market integration. Among the best-known decisions in this respect are the Viking and Laval cases, which assessed the right to collective action by trade unions in cases involving Latvian and Estonian construction and shipbuilding workers in Sweden and Finland. While the CJEU recognised the fundamental right to collective action in order to curb social dumping, it placed restrictions on the exercise of this right.
Cooperation between national administrations a desideratum
In addition to the legislative and judicial branches, there is also the executive: “As a third prong, we examine how European rules are implemented by national administrations – which can vary markedly from country to country,” Blauberger adds. For example, when comprehensive documentation was introduced in order to identify posted workers appropriately, the administrative effort increased considerably for companies that wanted to comply with all the rules – as did documentation fraud. “More thorough controls would require cross-border cooperation between authorities, but that is difficult to implement,” explains Heindlmaier. “Hopes are set on the European Labour Authority (ELA), which was founded in 2019, but is getting operational only slowly.” The research project also focuses on the situation surrounding the establishment of this new EU agency.
The empirical-analytical research on the interaction between the three branches of government at EU and national level is designed to reveal the mechanisms of social dumping and exploitation. Results could serve as a basis for future action in this field. According to Heindlmaier, the regulation of posting, bogus self-employment & co. all too often turns into a game of cat and mouse: “As soon as you put a stop to one form of social dumping, the practitioners in the field resort to a new form.”
Michael Blauberger is a Professor of European Union Politics at the University of Salzburg, Austria. His work focuses on issues of EU integration and the significance of EU law and the rule of law for this process. The three-year research project “Rebalancing the enlarged single market” (RESiM) is a transnational project of the University of Salzburg and the University of Bremen, funded by the Austrian Science Fund FWF and the German Research Foundation DFG. In addition to research team member Anita Heindlmaier (post-doctoral researcher), Carina Kobler, a doctoral candidate at the University of Salzburg, is also affiliated to the project.