Marco Rocca
@unistra.fr
Researcher, CNRS (National Centre for Scientific Research, France)
University of Strasbourg
Scopus Publications
Scopus Publications
Frederic De Wispelaere and Marco Rocca
SAGE Publications
Drawing on research conducted by the authors in the frame of the POSTING.STAT research project, this article explores the legal fiction that posted workers do not, at any time, ‘gain access’ to the labour market of a host State where they are in fact (temporarily) working. Hence, it analyses following question: at what point and under which circumstances are posted workers considered as working in a given Member State? To do so, it considers the use of the concept of ‘labour market’ across the case law of the Court of Justice concerning posting workers, to identify the constitutive elements of the implicit definition adopted by the Court. This analysis is compared with economic/statistical assumptions applied when measuring employment in a country. From a statistical point of view, the labour market appears to be demarcated by the place of establishment of the employer, thus excluding work (i.e., services) carried out through non-established employers. Consequently, cross-border labour mobility through the freedom to provide services does not fall within these boundaries and means that posted workers are counted in the employment statistics of their Member State of origin. The approach to posted workers in the labour market of the host State is therefore not only a legal, but also a statistical/economic, fiction. Based on an empirical reality that shows a strong concentration of posted workers in certain sectors, Member States or regions, we argue that courts and legislators, and also national statistical offices, should reconsider this approach.
Marco Rocca
Brill | Nijhoff
Mélanie Schmitt and Marco Rocca
SAGE Publications
Looking at the instruments of the EU economic governance (Memoranda of Understanding; Country Specific Recommendations) from the perspective of national labour law systems reveals wide differences in their impact. If it is possible to draw a direct link between the demands of a Memorandum and national labour law reforms, the picture is less clear for Country Specific Recommendations. Notably, different Member States show a different degree of ability to ‘resist’ these Recommendations, which appears to be based more on their coherence (or lack thereof) with national political preferences than on the specific situation of the given Member State when it comes to the corrective mechanisms of the EU economic governance. From the perspective of labour law, these instruments still show little in the way of a more ‘social’ approach. Taken together, these conclusions suggest that the instruments of the EU economic governance could hardly provide a productive contribution to the development and enforcement of EU labour law, risking, on the contrary, leading to its fragmentation due to their uneven impact across Member States.
Marco Rocca
SAGE Publications
The new economic governance of the European Union emerged as an important legacy of the Eurozone crisis. Although its suspension during the COVID-19 pandemic has somewhat reduced its visibility, the process of the European Semester remains as central as ever in coordinating socio-economic policies of Member States, notably through its link with the Recovery and Resilience Facility. Two of the most relevant tools of the EU Economic Governance, notably Memoranda of Understanding and Country Specific Recommendations, focus, to an important degree, on labour law reforms. As such, it is important to question the role which these instruments have played, and will potentially play in the future, for national systems of labour law as well as for the evolution of EU labour law itself. To do so, it is necessary to go beyond quantitative or macro approaches to the content of the prescriptions of these tools, in order to analyse their impact on specific labour law systems and national contexts. This will generate a better understating of the relevance of the EU economic governance for the field of labour law.
Frederic De Wispelaere and Marco Rocca
Springer Science and Business Media LLC
This article discusses challenges relating to the social security and employment status of highly mobile workers in the live performance sector. These are persons whose place of employment is not a particular Member State but Europe. As such, these challenges arise from their often-weak connection to a specific Member State. The article provides an overview of a number of problems that mobile artists and their employers encounter under the EU legal framework for posting of workers and social security coordination, and explores some possible solutions.
Rossana Ducato, Miriam Kullmann, and Marco Rocca
Springer International Publishing
Performance appraisal is compatible with the employment relationship if efficient entrepreneurs/employers adopt an achievement-oriented approach, which allows distinguishing between performance in its basic and proficient understanding. This opens up the way to a reward/punishment system that is likely to increase the chances for the work organisation as a whole (undertaking) to produce a positive outcome. Performance in its proficient understanding could be the realm of organisational innovation.
Marion Del Sol and Marco Rocca
SAGE Publications
The European Union appears to be promoting at the same time both cross-national mobility of workers and an increased role for occupational pensions. There is, however, a potential tension between these two objectives because workers risk losing (some of) their pension rights under an occupational scheme as a consequence of their mobility. After long negotiations, the EU has addressed this issue through a minimum standards Directive. Shortly before the adoption of this Directive, the Court of Justice also delivered an important decision in the same field, in the case of Casteels v British Airways. By analysing the resulting legal framework for safeguarding pension rights under occupational schemes in the context of workers’ mobility, we argue that the application of the case law developed by the Court of Justice in the field of free movement of workers has the potential to offer superior protection compared to the Directive. We also highlight the fact that the present legal framework seems to afford a much fuller protection to the intra-company cross-national mobility of workers employed by multinational companies, while also seemingly favouring mobility for highly specialised workers.