The newly-created European Labour Authority (ELA) will take its first steps in October, and there are fears that the ELA will be trapped between the expectations of some member states to step up controls against abuse in cross-border mobility and others who want to focus on providing information and support to fair mobility, argues Marcin Kiełbasa.
Marcin Kiełbasa is a lawyer at the Labour Mobility Initiative
The European Labour Authority was intended to supplement other laws aimed at improving labour mobility such as the revision of the Posting of Workers’ Directive and the revision of the Social Security Coordination Regulations.
Its tasks range from facilitating access to information and cooperation between member states, to carrying out analyses and risk assessments concerning cross-border labour mobility and providing support in capacity building.
However, there are already diverging expectations as to the ELA’s role among the member States. At the first glance these seem to be irreconcilable but consensus, satisfactory for all sides, can be achieved if appropriate use is made of the Authority’s legislative framework.
Member states’ diverging expectations…
Some of the member states expected (and still do) the Authority to adopt a more aggressive policy towards fraudulent employers in cross-border situations. They await strict and numerous controls to be carried out when (and where) suspected abuses have taken place. Underlying these expectations is their desire to protect local labour markets against erosion of high social standards.
Other member states see the ELA as ‘a champion of labour mobility’ and perceive its role as facilitating fair movement in the Single Market – by providing relevant information and support. In other words, they want to see the removal of unnecessary barriers to free movement, while protecting those who make use of it.
The so-called concerted and joint inspections have clearly demonstrated this rift. Iwona Kasprzyk-Sowa, advisor to Danuta Jazłowiecka MEP and one of the experts on the European Labour Authority in the European Parliament, has said that fine-tuning the ELA’s competences concerning inspections was the most controversial issue and a precondition for its adoption.
Luckily, a compromise between the two approaches has been reached. Concerted and joint inspections will be subject to the agreement of the member states concerned – no inspection could be carried out on the territory of a member state against its will. Non-participating member state(s) will only be bound to inform the ELA and the participants of the reasons for their non-participation.
Moreover, national controlling competences will not be replaced or undermined. The national authorities should be fully involved and should have full authority over inspections.
This bodes well for the future of the ELA. It shows that the expectations of both sides can be reconciled by the Authority within its envisaged legal framework.
How? First of all, the ELA needs to focus on eliminating abuse within the cross-border mobility. Much ink has been spilled over this issue, but the experts agree that the main source of abuse is undeclared work and bogus self-employment. It is therefore a relief to see in the text agreed by the institutions that the ELA will support member states in tackling undeclared work.
In doing so, the Authority is to be supported by the European Platform to enhance cooperation in tackling undeclared work – by boosting the cooperation between authorities and increasing public awareness of the issue.
Even though the contours of how undeclared work is to be tackled remain vague, this role is a step in a right direction, as it highlights the important issue in cross-border mobility, which is often left unnoticed.
Moreover, to tackle abuse, instead of stricter controls, the ELA needs to focus on innovative prevention, including swifter access to relevant information and promoting the use of electronic tools and procedures of information exchange.
An A1 Portable Document made simpler, more reliable and quicker to get and yet serving to ‘lock out’ those who try to evade legal obligations? Super-fast electronic exchange of information between the relevant authorities to locate a fraudulent employer using undeclared work to undermine legal service providers?
Yes, the ELA will have instruments to do that and more, as it ‘shall promote the use of electronic tools’ and of ‘electronic exchange mechanisms and databases between the member states to facilitate the access to data in real time and detection of fraud’. Such measure will go a long way towards tackling abuse and fraud and promoting fair labour mobility at the same time.
In for a penny, in for a pound
Last but not least, it will be the composition of the ELA’s authorities and staff that will decisively shape ELA’s future and enable it to unlock its potential.
Its Management Board (including the Chairperson) and the Executive Director, but also seconded national experts and the division into units will actually determine its future and will give flesh to the legislative bones. It will also ensure consensus between the member states’ diverging expectations.
The ELA should become ‘a new university for the EU’s labour mobility’, bringing together top experts to tackle abuse and promote fair mobility? It’s time to act on it now, as a careful selection of ELA’s personnel is crucial for its fate and for the EU’s most cherished achievement – free movement.