CJEU: Belgian systems for the recognition of dockworkers partially violates EU law
Belgian dock labour in the ports is regulated by the Act of 8 June 1972 on port labour, better known as the ‘Major’ Act. This law stipulates that, for safety reasons, only recognised dockers are allowed to load and unload ships in Belgian ports. The approval of the dockworkers is done by an administrative committee with equal representation of employers and dockworker organisations (trade unions). The Act of 1972 was previously a thorn in the side of the European Commission, which had started infringement proceedings against Belgium, but discontinued them after Belgium amended the executive Royal Decree of 5 July 2004 by means of a Royal Decree of 10 July 2016. However, some port companies went to the Council of State (Katoen Natie and General Services to annul the Royal Decree of 10 July 2016) and the Constitutional Court (Middlegate Europe was fined for employing a non-authorised workers). The Council of State and the Constitutional Court requested the Court of Justice to rule on the compatibility of the regulation with the freedom of establishment (Article 49 TFEU), the free movement of workers (Article 45 TFEU) and the free movement of services (Article 56 TFEU).
The Court of Justice is of the opinion that the regime of the Act of 1972 of makes it more difficult for non-Belgian companies to establish themselves in the Belgian ports or to offer services there, since they cannot simply employ their own personnel or make use of unauthorised workers. Such a restriction on these economic freedoms can, however, be justified by an overriding reason of general interest, in this case the guarantee of safety in the port areas and the prevention of occupational accidents. Furthermore, the restriction must be appropriate and proportionate to achieve that objective. That is the case if the recognition of the port workers is based on objective, non-discriminatory criteria known in advance, by which port workers from other Member States can prove that they meet, in their country of origin, requirements equivalent to those applicable to domestic port workers. Furthermore, there must not be a restricted pool of workers eligible for recognition.
First of all, the Court examines the regime laid down in the Royal Decree of 2004 (as amended by the Royal Decree of 2016), which, according to the Court, constitutes a restriction not only on the freedom of establishment and the freedom to provide services, but also on the free movement of workers (Article 45 TFEU), given that it provides, inter alia:
- that recognition is carried out by an administrative joint committee;
- this committee also determines whether the recognised workers are included in the 'port workers' pool. Inclusion in the pool depends on the demand for labour. Workers who are not admitted are only recognised for the duration of their employment contract, while workers who are admitted are recognised for an indefinite period;
- the committee is notbound by a maximum time limit for taking a decision.
These conditions are neither necessary nor appropriate to achieve the aim pursued (safety) and infringe Articles 45, 49 and 56 TFEU.
The Court also questions the expertise an objectivity of the members of the joint committee, given that they are appointed by operators who are already active on the market, namely by an organisation representing dockers who have already been recognised. The dockers represented by the organisation risk being in competition with those who have applied for recognition. The fact that no maximum or reasonable decision period is prescribed further contributes to the risk of arbitrary refusals.
Also the rule that recognised dockers who are not included in the pool have to apply for recognition again each time their employment contract expires, while it is possible that there is only a short period of time between the initial recognition and the end of the employment contract, especially in the case of a temporary employment contract, cannot be justified according to the Court. According to the Court, it cannot reasonably be assumed that, shortly after their recognition as dock workers, those workers lost the skills and qualities which had justified their recognition not long before.
Secondly, the Court examines the conditions for recognition. Workers must be medically fit, pass a psychological test and undergo prior vocational training, unless they satisfy similar conditions in another Member State. Those requirements pass the test of the Court, but it is for the referring courts to determine whether the tests and examinations required are sufficiently transparent, objective and impartial.
Also other aspects of the system survived the test of the Court, like the automatic recognition of dockworkers who were included in the pool before 2016 and the system for transferring dockworkers from one port to another port.
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