International Labour Law under the Rome Conventions

Transcription

1 Kooperationswerke Beck - Hart - Nomos International Labour Law under the Rome Conventions A Handbook Bearbeitet von Prof. Dr. Olaf Deinert 1. Auflage Buch. XXXVI, 540 S. Hardcover ISBN Format (B x L): 16 x 24 cm Recht > Zivilrecht > Internationales Privatrecht schnell und portofrei erhältlich bei Die Online-Fachbuchhandlung beck-shop.de ist spezialisiert auf Fachbücher, insbesondere Recht, Steuern und Wirtschaft. Im Sortiment finden Sie alle Medien (Bücher, Zeitschriften, CDs, ebooks, etc.) aller Verlage. Ergänzt wird das Programm durch Services wie Neuerscheinungsdienst oder Zusammenstellungen von Büchern zu Sonderpreisen. Der Shop führt mehr als 8 Millionen Produkte.

2 Deinert International Labour Law under the Rome Conventions A Handbook C.H.BECK HART NOMOS

3 Deinert International Labour Law under the Rome Conventions

4 International Labour Law under the Rome Conventions edited by Prof. Dr. Olaf Deinert 2017 C.H.BECK. HART. NOMOS

5 Published by Nomos Verlagsgesellschaft, Waldseestraße 3-5, Baden-Baden, Germany, Co-published by Verlag C.H.BECK ohg, Wilhelmstraße 9, München, Germany, and Hart Publishing, Kemp House, Chawley Park, Cumnor Hill, Oxford, OX2 9PH, United Kingdom, Published in North America (US and Canada) by Hart Publishing, c/o International Specialized Book, Services, 930 NE 58 th Avenue, Suite 300, Portland, OR , USA, ISBN (Nomos Print) ISBN (Nomos epdf) ISBN (C.H.BECK) ISBN (Hart Publishing) First Edition 2017 Nomos Verlagsgesellschaft, Baden-Baden Printed in Germany. This work is subject to copyright. All rights are reserved, whether the whole or part of the material is concerned, specifically those of translation, reprinting, re-use of illustrations, broadcasting, reproduction by photocopying machine or similar means, and storage in data banks. Under 54 of the German Copyright Law where copies are made for other than private use a fee is payable to»verwertungsgesellschaft Wort«, Munich.

6 Foreword This book has been published in German language firstly in It goes back to the famous German book on private international law in the field of Labour law from Franz Gamillscheg, which was published 50 years before (see the translation of the four good for the German edition). Publisher, sponsor and author decided to edit a (revised) translation. The aim of this book is on the one hand to present a comprehensive analysis of the private international law in the field of labour contracts under the Rome conventions and on the other hand to provide an insight into the German debate on this subject for scholars and practitioners. We think that this could be interesting because the country is big enough to produce enough cases to open debates on many questions of conflicts laws in the field of Labour law that are not understandable for everyone due to language reasons. Maybe the arguments from the German discussion could be fruitful not only for the debate on European level, but also for legal discussions at national level in other countries. For these reasons I am very thankful to the Hans Böckler Foundation for supporting this edition by bearing the costs of translation and to Marc Schietinger also from the foundation for personally supporting this project. I am happy to have found Narina and Norton Sims who have translated the German edition into English. I d like to say thanks to both for their exhausting and very helpful work. This edition is nevertheless not an English copy of the German edition from Publisher and author are convinced that detailed observations on German peculiarities are not of interest for lawyers outside our country. Therefore, the descriptions on the German legal situation are restricted to those which could be illustrative for private international law questions. Since the PIL rules on collective agreements and the workers involvement are not harmonised at European level and therefore still national rules I have eliminated the chapters regarding these rules. For those who are interested in these national peculiarities I have given a short overview on private international law in the field of collective Labour law at the beginning of chapter 15. Furthermore, references to the German edition are given where observations on purely domestic discussions have been eliminated. It was not possible to bring the, with all its comparative, observations from 2012 up to date. As far as legal debate and national statutes for illustration of PIL problems are concerned, this seems not to be serious because some changes in detail do not affect the conflicts laws solutions. On the other hand it is natural that evident mistakes and inaccuracy should be avoided. This is the reason why I updated the book in summer 2016 with a view to new EU level statutes and VII

7 Foreword caselaw of the German federal Labour Court and the Court of Justice of the European Union. After these revisions there was a lot of work left to be done with respect to language harmonisation, check of cross-references, homogenous reference style and careful proof-reading. I am very thankful to Betts Albers, Inga Lehner, Charlotte Dorn, Jasmin Dubenkropp, Susanne Eichhorn, Anne Kärcher, Christopher Siemon and Raphael Wollers for a lot of ambitious and accurate work in that field. Besides all this helpful support by many pleasant colleagues the liability for any mistakes will remain by the author. Göttingen, October 2016 Olaf Deinert VIII

8 Translation form the Foreword to German Edition 2012 Almost 4 years ago Franz Gamillscheg asked me whether I would like to write a new book about international employment law (conflict of laws). If so, he could make a certain amount of material available to me. Having some idea of what to expect, I did not say yes immediately, but only some time later. Yet I had no inkling of what an immense effort the writing of this book would be. And in the process of writing it I received help from many different quarters. Not only the materials promised, which were not transportable without mechanical assistance, but also the time for research and for exchanging opinions in discussions with interlocutors, provided support for the project in many different ways. More than 50 years ago, Franz Gamillscheg systematically analysed international employment law for the German legal system on a comparative-law basis. His conception has been carried on in this work. His structure could not, however, be wholly retained because of new provisions, such as the Rome I Regulation, the directive on the posting of workers and the law on the posting of workers (AEntG). However, new law still means having recourse to old knowledge. Thus, again and again citations from former times will be found in support of new law. That they must be transposed to the new law must always be in the reader s mind. The objective of the exposition has, however, remained fundamentally the same. This book is intended first and foremost to afford employment-law practitioners an overview and guidance in order to understand international employment law questions and successfully work through them. An appendix with glossary and the most important legal provisions is intended to provide additional help in that context. Secondly, it is intended to add to the sum of legal science and to provide detailed discussion of individual questions. The book refers to foreign law from the 15 July 2012, and to German and European law from the 31 August Comparative law has acquired a different significance for the conception of the work. After private international law in regard to employment law was essentially codified by European law, it has at the same time become more and less important: more important, where the interpretation of supranational law is involved, less important where that law is codified. Comparative law is not, however, limited to the comparison of private international law but also includes substantive law. Relevant comparative references to foreign legal systems are intended to illustrate conflict-of-laws problems. They also reveal questions which one would not have encountered without a knowledge of the features of those foreign legal systems. However, the accounts given do not claim to have any autonomous status in regard to giving information about foreign law. They are in- IX

9 Translation form the Foreword to German Edition 2012 tended to provide orientation and are therefore sometimes more detailed than would be absolutely necessary for the purposes of private international law. Without the help from many quarters, mentioned at the outset, this book would never have been finished. My thanks therefore go to the numerous friends, sponsors and institutions. I would mention, first of all, Franz Gamillscheg for his suggestion and encouragement, for passing his materials to me and for commenting on the finished manuscript. I would like to thank Mr. Gillig for his spontaneous agreement for the book to be published in this conceptual format by the Mohr Siebeck publishing house. I thank the Hans-Böckler- Stiftung and the Otto Brenner Stiftung for financing both the project and a term of research by financing a replacement. I would like to thank my faculty and Institute colleague, Rüdiger Krause, for the patience with which he has borne the additional stresses and strains which inevitably fell upon him during two terms of research. I would further like to thank colleagues and friends from abroad who have critically examined the descriptions on the relevant domestic laws: Edoardo Ales (Cassino University), Filip Dorssemont (Catholic University of Louvain), Ruth Dukes (Glasgow University), Teun Jaspers (University of Utrecht), Elisabeth Kohlbacher (Graz University), Thomas Kohler (Boston College Law School), Natividad Mendoza Navas (Castilla-La Mancha University), Patrick Rémy (University of Paris I) and Mia Rönnmar (University of Lund). My special thanks go to the truly good friends who read the manuscript in full and, by their numerous comments, caused me some considerable work but thereby considerably improved the book. I thank Michael Kittner particularly for giving me conceptual advice under the motto the better is the enemy of the good, at the same time as picking up the smallest detail with his criticism. Peter Winkler von Mohrenfels raised conflict-of-laws points which here and there brought about a change of mind. Wolfgang Däubler I thank for pointing out unusual matters that otherwise would have remained unheeded. I also thank my collaborator, Raphaël Callsen, for his extremely alert reading of the manuscript, with a heightened sensitivity for hidden contradictions. I thank my secretary Bastienne Brühmann for her unstinting devotion to maintaining the database for the index of keywords. The gratitude expressed to all who were prepared to lend their critical assistance is not intended to relieve the author of responsibility for any errors for which he remains solely responsible. Göttingen, September 2012 Olaf Deinert X

10 Contents Register of abbreviations... XVII Glossary... XXIII Register of shortly cited literature... XXV Chapter 1: Introduction Subject-matter, Objectives and methods... 1 I. Overview... 1 II. Conflict-of-laws issues and rules for determining the applicable law... 1 III. Subject-matter... 4 IV. Objectives, governing concepts and methods Sources of law for determining the applicable employment law Influences of European Union law I. Conflict-of-laws rules under Union law II. Hierarchy of norms and precedence of application III. National public policy in a European mould IV. Mandatory public policy under Union law Chapter 2: General doctrines of private international law of relevance to employment law Classification I. Problem II. Method of classification and law applicable to classification.. 43 III. The individual employment contract Public policy I. Overview II. Function III. Principles IV. Examples V. Legal consequences XI

11 Contents 6 Further questions under the General Part I. Simple and multiple renvoi and renvoi in the case of states with multiple legislations II. Preliminary question Chapter 3. Connecting factors Capacity and contractual capability I. Substantive law II. Conflict of laws Law governing formal validity I. Substantive law II. Conflict of laws Law governing employment contracts I. Overview II. The decision based on conflict-of-laws rules policy in favour of freedom of choice of law III. Choice of law (law subjectively applicable to the contract) The choice of law under conflict rules Purely Domestic and internal market situations Most Favourable Principle a) Mandatory provisions b) Favourability comparison c) Legal consequence under the conflict-of-laws rules IV. Law objectively applicable to the contract General Place-of-employment connecting factor Immateriality of temporary posting Subsidiary connecting factor of the place of business through which the employee is engaged Escape clause Change of applicable law V. Specific case configurations Variable employment abroad Rail and air transport Work at sea a) System of connecting factors b) Specific matters Embassy employees XII

12 Contents 10 Special connecting rules I. General II. Overriding mandatory rules Introduction Special connecting rule for overriding mandatory provisions of the forum a) Overriding mandatory rules b) Collective agreements as overriding mandatory provisions? c) Special connecting rule d) Overriding mandatory provisions under domestic law Special connecting rules in the posting directive and their implementation in the Member States a) Background b) Content c) Limits on Member State legislation d) Transposition by Member States Overriding mandatory provisions of the lex causae Effects of the overriding mandatory provisions of third countries a) Problem and solutions b) Third-country overriding mandatory provisions c) Taking into account the third country overriding mandatory provision Conflicting overriding mandatory provisions III. Implications as to the treatment of public-law employment law Stating the problem System of connecting rules Specific examples a) Public law b) Private employment law (1) Work within the country (2) Work abroad Chapter 4: Scope of the law applicable to the employment contract Creation of the contract I. Substantive law II. Conflict of laws XIII

13 Contents 12 Contents of the employment relationship I. Performance of work Substantive law Conflict of laws II. Ancillary duties of the employee Substantive law Conflict of laws III. Remuneration Substantive law Conflict of laws IV. Employer s ancillary obligations General a) Substantive law b) Conflict of laws Working time and safety a) Substantive law b) Conflict of laws Equal treatment a) Substantive law b) Conflict of laws Leave entitlement a) Substantive law b) Conflict of laws Temporary hire of workers a) Substantive law b) Conflict of laws Occupational training Special protection regimes a) Substantive law b) Conflict of laws V. Consequences of breach of duty Substantive law Conflict of laws VI. Deactivation of the employment relationship and of contractual obligations VII. Exclusion periods Legal succession and termination of the employment relationship I. Overview II. Legal succession Overall legal succession XIV

14 Contents 2. Individual legal succession a) Substantive law b) Connecting factors c) Cross-border transfer of an undertaking III. Termination of employment Cancellation contract Termination a) Substantive law b) Conflict of laws (1) PIL concerning protection against dismissal (2) Foreign situations and application of dismissal protection law (3) Individual problems (4) Special protection against dismissal (5) Mass dismissals (6) Periods of notice (7) Participation of plant representation Fixed terms a) Substantive law b) Conflict of laws Insolvency Continued employment Reinstatement Post-termination effects of the employment contract I. Prohibitions on competition II. Pensions schemes III. Miscellaneous Industrial action Overview II. The connecting factor of the place where the action takes place in the case of industrial action III. Classificatory referral IV. Substantive law V. The law applicable to tortious acts arising out of industrial action VI. Scope of the law applicable to tortious liability in connection with an industrial action Uniform assessment of lawfulness Further specific questions on the scope of the law applicable to liability in tort for the industrial action XV

15 Contents 3. Persons entitled and persons liable Position of the individual VII. Overriding mandatory provisions and public policy VIII. EU law on industrial action IX. Excursus: other activity under the heading of freedom of association Chapter 5: Procedural questions International jurisdiction and application of law problems I. International jurisdiction Brussels I bis Regulation Lugano Convention National law II. Application of the law Ascertaining the applicable law Typical problem cases in employment law REGULATION (EC) No 593/2008 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL (Rome I) REGULATION (EC) No 864/2007 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL (Rome II) REGULATION (EU) No 1215/2012 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL (Brussels I bis) DIRECTIVE 96/71/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL (Posting Directive) DIRECTIVE 2014/67/EU OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL (Enforcement Directive) COM(2016) 128 final Register XVI