5.1 Introduction
Under EU rules and case law, everyone whose rights and freedoms have been violated must be afforded access to a court or a tribunal (Arts 47 EUCFR and 19 TEU). Having access to a court or tribunal means access to judicial protection.1 Four main subjects are addressed in this chapter. It starts with discussing the legal rules on access to a court (section 5.2). The discussion embraces the legal regulation of jurisdiction, domestic rules on locus standi for individual employees and social partners, interim procedures and collective redress, and legal aid. Secondly, aspects of judicial procedures are described, such as time limits and evidential rules (section 5.3). Thirdly, an instrument is discussed that has gained particular importance in the enforcement of worker’s rights: the liability of a (sub)contractor or a user undertaking for the payment of minimum wages, holiday pay and holiday allowances (section 5.4). Finally, existing remedies are exemplified in case employees did not (or only partly) receive their wage holiday pay and holiday allowance (section 5.5).
5.2 Access to a court 5.2.1 Introduction
If the substantive rights dealt with in Chapters 3 and 4 are to be effectively guaranteed, the parties concerned need to be able to initiate legal action against an employer who fails to observe such rights. One of the questions that arises in cross-border situations is whether the court that has been petitioned has jurisdiction. An important instrument adopted at EU level is Regulation (EC) 44/2001 on the jurisdiction and the recognition and
1 It has been said that in line with Arts 6 and 13 ECHR, the ECJ recognised that Member States must have judicial procedures for dealing with claims following infringements of a directive. See, eg, Case 222/84 Johnston ECLI:EU:C:1986:206. See section 2.2 above.
enforcement of judgements in civil and commercial matters.2 Article 6 PWD is also relevant, as it ensures that foreign workers have access to a court in their (temporary) host state in case their rights have been infringed. As a result, domestic rules on jurisdiction and access to a court in cross-border disputes are largely uniform in this respect (sections 5.2.2 and 5.2.3). Another measure enacted to facilitate cross-border access to judicial protection is the Legal Aid Directive (section 5.2.6). Two of the measures that are also dealt with in this section, which have not been regulated at EU level, are group litigations (section 5.2.4) and interim measures (section 5.2.5).
5.2.2 EU rules on jurisdiction: Regulation (EU) 44/2001 and Article 6 PWD To facilitate the sound operation of the internal market, in which free movement rights are ensured, the EU adopted Regulation (EU) 44/2001 on jurisdiction and the recognition and enforcement of judgements in civil and commercial matters (‘Brussels I Regulation’).3 The Brussels I Regula-tion applies to all civil and commercial matters, and matters relating to individual contracts of employment.4
An employee, or his representative, who wishes to sue his employer for not paying the minimum wage to which he is entitled, may do so, taking the following rules into account. An employer may be sued in a court of the Member State in which he is domiciled or in another Member State (Art 19). There are two options here, namely in the courts of the place where or from where the employee habitually carries out his work or where he did so, or if there is no place where the employee does or did habitually carry out work, in the court of the place where the business
2 Regulation (EC) 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters [2001] OJ L12/1 (Brussels I Regulation). Regulation (EU) 1215/2012 of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters [2012] OJ L351/1 (Brussels I-Bis Regulation) will enter into force as of 10 January 2015, replacing Regulation (EC) 44/2001. In relation to employment contracts, no substantial amendments have been made. See on this new Regulation: Kramer (2013).
3 See in particular recitals 1 and 2 of the preamble. For an interesting article on the process of Europeanisation of civil procedures see: Tulibacka (2009).
4 Art 1, in conjunction with Chapter I Section 5. Recital 138 of the preamble determines that “[i]n relation to […] employment, the weaker party should be protected by rules of jurisdiction more favourable to his interests than the general rules provide for”.
which engaged the employer is or was situated.5 The parties to an employment contract are allowed to derogate from these rules only to a limited extent. If they wish to do so, they must do so by agreement, either entered into after the dispute has arisen, or by allowing the employee to bring a legal action in the courts other than those referred to above (Art 21).
Article 67 Brussels I Regulation determines that this shall not affect rules governing jurisdiction in specific Community instruments or in Member State legislation harmonised pursuant to such instruments. An example is Art 6 PWD, under which, the host Member State has to ensure that posted workers may (also) institute civil actions there. It is explicitly stated that it is the Member State in which the work is temporarily carried out which has to guarantee that posting employers apply the core conditions to their posted employees for the duration of their posting (Art 3(1) PWD). Furthermore, this provision does not prejudice the right under existing international conventions on jurisdiction to institute legal actions in another state (eg, the employee’s home state). Article 6 PWD has been reiterated in Art 11 Posted Workers Enforcement Directive. Similarly, Art 3 Union Workers Enforcement Directive determines that the state in which the Union worker works shall ensure that judicial procedures are available for the enforcement of the rights derived from Art 45 TFEU and Arts 1 to 10 Regulation (EU) 492/2011.6
5.2.3 Locus standi of employees and social partners
Having established the EU rules on jurisdiction, we now look at whether and, if so, how individuals and social partners can gain access to a Member State court. This involves the question of locus standi, ie the right or capacity of an individual to bring an action or to appear in a court, which is closely related to issues of jurisdiction. Based on EU law,
5 Art 60 Brussels I Regulation clarifies that a company or legal person or association of natural or legal persons is domiciled in the place where it has it statutory seat, central administration or principal place of business.
6 Directive 2014/67/EU of 15 May 2014 on the enforcement of Directive 96/71/EC concerning the posting of workers in the framework of the provision of services and amending Regulation (EU) No 1024/2012 on administrative cooperation through the Internal Market Information System (‘the IMI Regulation’) [2014] OJ L159/11 (‘Posted Workers Enforcement Directive’) and Directive 2014/54/EU of 16 April 2014 on measures facilitating the exercise of rights conferred on workers in the context of freedom of movement for workers [2014] OJ L128/8 (‘Union Workers Enforcement Directive’). See on these Directives sections 2.3.3 and 2.3.4 above.
employees who cross borders must have access to a court if their employer fails to observe their rights. For posted workers, in addition, access to the temporary host state court must also be guaranteed. An underlying principle known from labour law is that, before initiating proceedings in court, an employee first has to call his employer to account for not complying with his obligations under national statutory law and/or collective agreements, before initiating judicial proceedings. The domestic rules on locus standi of individual employees and social partners are considered below.
A. Locus standi of Union workers and posted workers Locus standi of Union workers
Foreign employees who are regularly employed– even temporarily – by an employer in the host state and whose rights under Dutch, German or Swedish statutory and collectively agreed employment agreements have been infringed can, in principle, institute legal proceedings. In that regard, the labour courts (Germany and Sweden) or civil courts (the Netherlands and Sweden) enjoy broad jurisdiction. Both the Dutch Civil Court7and the German Labour Court8 are competent to deal with employees’ claims concerning rights that arise out of an employment relationship,9including claims based on a failure of the employer to pay the statutory or (generally binding) collective minimum wage, holiday pay, and holiday allowance.
Access to the Civil Court in the Netherlands is only granted if the work the employee has performed normally is or lately has been performed in the Netherlands.10 In Germany, it suffices that the Labour Court can rule on a claim if the claim arises out of the employment relationship.11 This is likely to be the case if a foreign employee is employed by an employer established in Germany.
7 Art 6(b) Wetboek van burgerlijke rechtsvordering (‘Rv’) (Code of Civil Procedure).
8 § 2(1) No. 3a Arbeitsgerichtsgesetz (‘ArbGG’) (Act on Court Procedure in Labour Law Matters (Arbeitsgerichtsgesetz in der Fassung der Bekanntmachung vom 2.
Juli 1979 (BGBl. I S. 853, 1036), das zuletzt durch Artikel 3 des Gesetzes vom 10.
Oktober 2013 (BGBl. I S. 3786) geändert worden ist), das durch Artikel 3 des Gesetzes vom 10. Oktober 2013 (BGBl. I S. 3786) geändert worden ist).
9 The German provision speaks about“aus dem Arbeitsverhältnis“ and the Dutch provision about“[…] zaken betreffende […] een arbeidsovereenkomst“.
10 Art 6(b) Rv; Kamerstukken II 1990/91, 26 855, nr. 3, 35.
11 §§ 2 and 3 ArbGG; Hauck, Helml & Biebl (2011) (Helml) § 2 ArbGG, para 25; Bader, Creutzfeldt & Friedrich (2008) § 2 ArbGG, para 7; Germelmann, Matthes &
Prütting (1999) (Schlewing) § 2 ArbGG, para 56.
The situation in Sweden is different. Here, the competence of the Labour Court depends on whether the employer and employee are bound by a collective agreement. If both the employer and the employee are bound, the Labour Court is competent. In situations where the employer and/or employee are not bound, the Swedish District Court is competent.
The Swedish Labour Court, in first and final instance, deals with any dispute initiated by an individual employer or an employers’ association or a trade union.12 Accordingly, the Labour Court has jurisdiction in all labour disputes covering disputes on collective agreements, collective labour legislation and individual employment contracts.13 These largely concern disputes between employers’ associations or individual employ-ers and trade unions concerning collective agreements, the Co-determina-tion Act (1976:580) or other disputes, provided the parties are bound by the same collective agreement.14 Thus, the Swedish Labour Court deals only with disputes in case both the employer and the employee are bound by a collective agreement or in case the employer is bound by a collective agreement and must apply the agreement to its non-unionised employ-ees.15 Particular rules apply to disputes regarding temporary agency work.16 Accordingly, the Judicial Procedure in Labour Disputes Act (1974:371) applies to disputes regarding temporary agency work, which means that the Labour Court is assigned competence. The reason for this particular provision is that the Labour Court can rule on a case between a user undertaking and a temporary agency worker.17 Consequently, the provision presumes that in case there is a dispute between the temporary agency worker and a user undertaking, the parties will be considered as employee and employer. Otherwise, the employees would have to go to the District Court, merely because they have no employment relationship with the user undertaking.
The Swedish District Court is competent regarding disputes invol-ving employees that do not belong to an established trade union (ie a trade
12 Section 2:1 Judicial Procedure in Labour Disputes Act (1974:371) (Lag om rättegång-en i arbetstvister).
13 Fahlbeck (2002), 126.
14 Section 1:1 Judicial Procedure in Labour Disputes Act (1974:371).
15 Engblom (2009) 26.
16 Section 17 Act on Temporary Agency Work (2012:854).
17 Prop. 2011/12:178, 65. This is consistent with the Diskrimineringslag (2008:567) (Discrimination Act), Chapter 6, Section 1(1). To allow a variety of individuals to have access to judicial protection, the Discrimination Act (2008:567) determines that job seekers and individuals who perform work as temporary or borrowed labour shall also be regarded as employees.
union not being a party to the collective agreement) and their employer.18 Disputes can be brought before the District Court in cases where the Labour Court has no jurisdiction,19 or where the dispute concerns a member of a trade union who is not represented by his trade union.
Individual employees who are not member of a trade union are entitled to bring a case against their employer based on a failure to comply with statutory labour provisions, such as the Annual Leave Act, or their employment contract; claiming compliance with a collective agreement is not possible if employees are not members of the signatory trade union.
Locus standi of posted workers
Particular rules apply in relation to posted (temporary agency) workers, as they are regularly employed in their home state and only temporarily posted to the host state. Because of Art 6 PWD, host Member States must provide posted (temporary agency) workers with an additional forum, enabling them to initiate legal action in the temporary host state.
All three countries have implemented this provision. While in Germany and the Netherlands claims of posted workers can also be based on generally applicable provisions of (certain sectoral) collective agree-ments, no such option exists in Sweden, if neither the employer nor the posted worker is a member of the signatory parties to the collective agreement. As Sweden does not have a system by which collective agreements may be declared generally binding, there is no possibility for the employee to enforce compliance with a collective agreement when their employer is not bound or when no incorporation clause has been inserted in the individual employment contract.
To simplify posted workers’ access to the court, all countries refer (directly or indirectly) in their laws to the core employment conditions based on which posted workers have access to judicial protection. Em-ployees who are only temporarily employed in the Netherlands may lodge a claim with the civil court, if the claim is based on one of the following provisions: Art 1 Wet arbeidsvoorwaarden grensoverschrijdende arbeid (‘WAGA’) (Terms of Employment (Cross-Border Work) Act)20 (referring
18 Schmidt (1977) 39.
19 Section 2:1 Judicial Procedure in Labour Disputes Act (1974:371).
20 This Act partly implements the PWD. Wet van 2 december 1999 tot uitvoering van de Richtlijn 96/71/EG van het Europees parlement en van de Raad van de Europese Unie van 16 december 1996 betreffende de terbeschikkingstelling van werknemers met het oog op het verrichten van diensten (PbEG 1997, L 18) (Wet arbeidsvoorwaarden grensoverschrijdende arbeid), Stb. 1999, 554.
to the applicable provisions of the Civil Code to posted workers), Arts 7 or 15 WML (minimum wage and minimum holiday allowance), Art 2(6) Wet AVV (generally binding collective agreements relating to key central employment conditions), as well as Art 8 or 11 Waadi (equal treatment/
pay obligation).21 In any case, the rules on jurisdiction should not be interpreted too narrowly.22
A similar approach is found in Germany. Here, posted workers who base their claim directly on employment conditions laid down in German statutory or administrative regulations (§ 2 AEntG), mandatory collec-tively regulated employment conditions (§ 8 AEntG), or the liability of the contractor for the payment of minimum wages and payments to be made to the joint institutions such as ULAK (§ 14 AEntG), may bring their case before the German Labour Court (§ 15 AEntG).23
§ 15 AEntG does not provide an exclusive jurisdiction for German Labour Courts, but creates an additional jurisdiction in cases of transna-tional postings.24 That provision itself does not claim to have international jurisdiction within the meaning of Art 67 Brussels I Regulation,25 but ensures that material and procedural law run pari passu.26 A close reading of that provision makes it clear that it applies to employees who are or have been posted within the scope of the AEntG.
In Sweden, under Section 10 Posting of Workers Act (1999:678), the Judicial Procedure in Labour Disputes Act (1974:371) is applicable to the
21 Though not explicitly referred to in Art 6(c) Rv, the worker’s claim may also concern the Working Time Act (Kamerstukken II 2002/03, 28 863, nr. 3, 5). This provision was implemented quite some time after the official deadline for trans-position of the PWD. It appeared that this provision initially had been implemen-ted, but was omitted in the review of the Code of Civil Procedure.
22 Kamerstukken II 1999/00, 26 855, nr. 3, 35. As far as collective agreements are concerned, it is important to note that under Art 6(b) Rv, the Dutch judge does not have jurisdiction to rule on foreign collective agreements, ie agreements that have been concluded for employment relationships situated outside the Netherlands.
This follows from the addition of the word “individual” to the employment relationship. The argumentum e contrario is that the Dutch judge is competent to rule on Dutch collective agreements. Nevertheless, the Dutch judge may have jurisdiction if it follows from the circumstances of the case.
23 Koberski (2011) § 15 AEntG, para 10, referring to BAG 11.09.2002– 5 AZB 3/02 – NZA 2003, 62 and BAG 19.05.2004– 5 AZR 449/03 , NZA 2004, 1170 according to which the provision claims not only jurisdiction for foreign (posted) workers, but also entitles the labour courts to deal with disputes arising out of the AEntG.
24 Müller-Glöge, Preis & Schmidt (Eds.) (2014) (Schlachter) § 15 AEntG, para 3. See also BAG 2.07.2008 – 10 AZR 355/07 (LAG Hessen 12.02.2007 16 Sa 1366/06) confirming the additional jurisdiction for cross-border postings.
25 BAG 2.07.2008– 10 AZR 355/07 (LAG Hessen 12.02.2007 – 16 Sa 1366/06), NZA 2008, 1084, referring to Preis & Temming (2006) 194ff.
26 Müller-Glöge, Preis & Schmidt (Eds.) (2014) (Schlachter) § 15 AEntG, para 1.
employee’s claim based on the core employment conditions of (Section 5 (1) or (3)), including which the Annual Leave Act (1977:480)), the right of association, and the right of negotiation (Section 7 Posting of Workers Act (1999:678)). An employee who is not a trade union member cannot enforce a collective agreement against the employer in court, even though the latter may be obliged to apply it to his employees. However, if the application of the collective agreement has been agreed, the employee can rely on his employment contract. Non-bound employees are to a certain extent de-prived of the possibility to enforce the provisions of the collective agree-ment.27 This is not because there is a procedural rule that hinders them from initiating judicial proceedings, but rather because employees derive no rights from a collective agreement if they are not a member of the signatory trade union. This is similar in the Netherland and Germany, in the event the collective agreement has not been declared generally binding.28
The Laval Inquiry Committee, which had to propose measures in response to the Laval case, concluded that the existing situation was contrary to EU law, and in particular Art 6 PWD. Whether this conclusion is correct can be disputed. The PWD does not oblige Member States to introduce core employment conditions as such. Only if Member States have such employment conditions, and they are laid down as provided by the Directive, then they must also be guaranteed to posted workers. This also means that posted workers must be able to claim their rights in court.
Notwithstanding, the Committee recommended that posted workers should be given a special right to claim terms and conditions, laid down in statutory law and in collective agreements, even if they are not members of the signatory trade union. Posted workers, the Committee argues, should be able, at least for the duration of the posting, to refer to the applicable collective agreement.29
However, the Swedish Labour Court and one of the leading employers’ organisations objected to this proposal. According to the employers’ organisations, such a rule would discriminate against foreign employers, as they would become ‘bound’ by a collective agreement but not as prescribed by the PWD (Art 3(1) and (8)). This would not apply to domestic employers and is therefore discriminatory, and probably not permitted under Rush Portuguesa.30Moreover, it would be idiosyncratic as
27 Adlercreutz & Nyström (2009) para 565.
28 See also Art 14 Wet CAO in the Netherlands below.
29 SOU 2008:123, 67.
30 Case C-113/89 Rush Portuguesa ECLI:EU:C:1990:142.
regards the Swedish model, under which employers and employees can only become bound by a collective agreement if both are members of one of the signatory parties or if the employer is obliged to apply the collective agreement to all employees or if the individual employment contract contains an application or reference clause.
regards the Swedish model, under which employers and employees can only become bound by a collective agreement if both are members of one of the signatory parties or if the employer is obliged to apply the collective agreement to all employees or if the individual employment contract contains an application or reference clause.