Hague Academy of International Law: Deadline to apply for the 2021 Centre for Studies and Research (postponement of the 2020 edition) until September 1st, 2020

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The Hague Academy of International Law announces the extension of the deadline to apply for the 2021 Centre for Studies and Research (postponement of the 2020 edition) until September 1st, 2020 (GMT+1). The programme will take place between August 16th and September 3rd, 2021 and will focus on the topic of “Applicable Law Issues in International Arbitration”.

The Directors of Research, Prof. Giuditta Cordero-Moss (University of Oslo) and Prof. Diego Fernández Arroyo (Sciences Po, Paris), invite applications from researchers including students in the final phase of their doctoral studies, holders of advanced degrees in law, political science, or other related disciplines, early-stage professors and legal practitioners. Applicants should identify the specific topic on which they intend to write. Participants will be selected during the fall of 2020, and will convene at The Hague during the programme period to finalize their papers. The best articles will be included in a book to be published in the fall of 2022.

All applicants are required to register online via the appropriate registration form. For more information about the programmes of The Hague Academy of International Law, please consult the website: https://www.hagueacademy.nl/.

Given the extremely positive feed-back of so many participants of earlier events of this type, participation is highly recommended to the global PIL community.

Covid-19 and its impact in private international law – Mexican Conference

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a) Zoom.
Link: url2.cl/LucR1
Meeting ID: 892 6744 1495
Password: bmaamedip

b) Facebook.
Link: m.facebook.com/AmedipMX

Saint Petersburg State University: Call for papers on Recognition and enforcement of foreign judgments: Problems and prospects

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By Andrey E. Zuev, Saint Petersburg

The modern period of the development of civilization is known to increasingly impart the character of imperativeness to the principle of cooperation between states, transforming its initially basically declarative formula of relations between states into an imperative content, fixed as obligations of the states to ensure the right to a fair hearing not only at the level of formal access to justice, but also at the level of enforcement of judgments as the highest manifestation of justice in the state organization of social management.

The emerging tendency to move from the mainly impersonated forms of doing business, mediated by the concept of legal person and based on governmental mechanisms, on the one hand,  to individual responsibility, on the other hand, reflects the achievement of a new level of opportunities for self-realization of a person, which, thanks to the development of the institution of intellectual property and other legal mechanisms of individualization of the surrounding world, is becoming increasingly apparent the creator in the world of tangible and intangible assets, at the same time accepting the responsibility for her or his own actions and their consequences, both in business and in personal matters.

CONVENTION ON THE RECOGNITION AND ENFORCEMENT OF FOREIGN JUDGMENTS IN CIVIL OR COMMERCIAL MATTERS, concluded at a diplomatic conference in The Hague on July 2, 2019 as part of the Hague Conference of Private International Law, became one of the new forms of translating the principle of cooperation between states into their specific legal obligations with respect to each person, creating a new platform for the development of the institution of recognition of foreign court decisions, both multilaterally and bilaterally.

The need of the international Community in this Convention, is directly related to the development and complication of international relations and business projects, to such an extent that the existing international treaties are explicitly foreseen  by some states as insufficiently reliable to achieve legal certainty and justice in the sphere of the access to justice, and especially  at the stage of recognition and enforcement of foreign state courts judgments.

This is expressed, inter alia, in  the fact that even having in place the system of international commercial arbitration, which uses the system of arbitration courts that has been tested for centuries, this system being based on the formation of the judiciary, appointed by the parties to the dispute and / or in accordance with the rules chosen by the parties, to resolve the dispute, the states are faced with the need to respond to the apparent lack of protection, independence, and competence of the arbitrators. This gives rise to arbitration decisions that do not meet the requirements of legal justice in the eyes of the state courts, designed to decide about the possibility of recognition and enforcement within their jurisdiction of foreign commercial arbitration awards, on the grounds of international treaties, and  their own constitutional rules of national legal order.

State justice, based on the principle of jura novit curia and having three main stages of verifying the compliance of a court ruling with the law in the broad sense, is opposed in the legal field by arbitration awards, whose authors are not required to know the law like the state courts, and, as a rule, do not bear the risks of their awards’ cancellation for this motive.

At the same time, the consequences of arbitral awards can have such a significance for society that a state which acts on behalf of the whole nation and in its interests cannot allow the risks associated with insufficient protection and / or insufficient competence of arbitrators in the international commercial disputes. In this regard, we are witnessing the emergence of a significant number of specially created state courts, whose activities are specifically aimed at considering disputes of international nature, and the judgments of which will also require recognition and enforcement on the territory of foreign states.

As we know, there are legal orders that authorize their courts to recognize and enforce foreign judicial decisions in their territory, in the absence of a relevant international treaty, and other legal orders that do not authorize their courts to make judgments on the recognition and enforcement of foreign judicial decisions in the absence of an international treaty. The emerging paradoxical situation leads to an imbalance in the relations between states.

This imbalance can sometimes be overcome by the practice of courts based on the principle of cooperation between states, as well as on international courtesy and reciprocity. At the same time, the international relations are now acquiring such quality and quantity that the international community is looking for ways to universalize relations in this area, in order to ensure access to justice at all stages.

The creation of state based international commercial courts for international disputes, the adoption of the Hague Convention on the recognition and enforcement of foreign judgments in civil and commercial matters in 2019, as well as the Hague Convention 2005 on the Agreement on the selection of courts, all that reflects the newest stage in the development of private international law and procedure, which requires international brainstorming sessions, an understanding of the capabilities of each legal system in ensuring the accessibility and urgency of justice as an obligation of states, coming from the principle of cooperation enshrined in the UN Charter and binding all the states of the planet Earth.

In this regard, the Journal of «Pravovedenie» (Jurisprudence) opens a call for papers for the articles in a special issue of the journal dedicated to the cooperation of states, in ensuring access to justice at the stage of recognition and enforcement of decisions of foreign state courts on its territory.

For these reasons, we would respectfully like to invite authors to contribute to this issue of the Journal, and offer their articles on these issues of private international law and process.

Articles are to be written in English or in Russian, and may be of length from 0.75 to 2 copyright sheets (author sheet is a unit of measurement of 40,000 characters, including spaces)). The articles are to be uploaded to the journal website at:

https://pravovedenie.spbu.ru/about/submissions

When editing your article, please follow our style guide, available on our website.

We need to receive your article no later than May 1, 2021.

Articles are subject to review in accordance with the rules of the Journal.

We shall be very thankful if you let us know in advance of your plans to participate in the issue, as we have to plan the volume of the printing.

Please send in anticipation a message about your intention to submit an article for this special issue of the journal to the following email address: pravovedenie@spbu.ru

Guest Editors

Gabriele Crespi Reghizzi, Doctor of Laws,

Full Professor of the Civil Law Department at Saint Petersburg State University;

former Ordinarius, University of Pavia

Andrey E. Zuev, Attorney-at-law, Contracted Professor of the Department of International law at Saint Petersburg State University, Member of the Russian Association of International law

Further information here.

For those who are interested in the HCCH 2019 Judgments Convention see also the HCCH/Bonn University Conference on 25 and 26 September 2020.

New article on ‘The ascertainment of the applicable law in the absence of choice in India and South Africa: a shared future in the BRICS’

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Written by Saloni Khanderia

Associate Professor Saloni Khanderia (Jindal Global Law School, O.P. Jindal Global University, Sonipat, India) recently published a new paper in the Oxford University Commonwealth Law Journal on ‘The ascertainment of the applicable law in the absence of choice in India and South Africa: a shared future in the BRICS’. The article may be accessed here.

Casebook on CISG cases in Italy

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Maura Alessandri just published Casebook sui contratti di vendita internazionale (in Italian) She kindly provided the following summary.

This year international trade law celebrates the 40th birthday of the “United Nations Convention on Contracts for the International Sale of Goods”, adopted in Vienna on 11 April 1980 (hereinafter referred to as “CISG”).

Although the CISG has been in force in Italy since 1 January 1988, Italian companies are often not familiar with its rules and tend to ignore its existence or not to apply it  (even when it applies automatically). Case law on CISG is gaining an increasing importance in Italy.

With a view to making the CISG better and more readily known, this Casebook aims to provide international trade lawyers and practitioners with a guide, easy to read and quick to consult, of the most significant judgments and arbitration awards issued in Italy in application of CISG.

It includes a selection of 96 Italian judgments and 12 arbitral awards. These include some of the most significant and well-known judgments which have become an important and useful reference for Judges and lawyers since they deal with the most frequent questions in practice. The publication of most of the arbitral awards have been authorized by the National and International Chamber of Arbitration of Milan, one of the most prestigious Chambers of Arbitration which daily deals with international trade law issues.

The published materials aim to help international trade lawyers to easily track the precedents which solved specific issues regarding the CISG’s autonomous and internationally oriented application and avoid what Honnold called “homeward trend”.

The book is intended for consultation through an analytical index of selected keywords in order to lead the reader directly to the relevant judgments and arbitral awards.

The following issues come up in the decisions taken up in the Casebook:

  • some decisions quote foreign decisions to promote the CISG’s uniform interpretation and application;
  • some decisions stress that uniform substantive law (i.e. the CISG) prevails over the rules of private international law (such as the Hague Convention of 1955);
  • some show the correct steps to be followed in order to check whether the CISG applies (either directly or indirectly). The direct application of CISG represents the most frequent scenario, i.e. an Italian company selling goods to a company which has its place of business in another Contracting State;
  • some decisions deal with the relationship between the CISG and the General terms and conditions (and the so-called Battle of the forms);
  • other decisions focus on what is (under an autonomous and uniform interpretation) a reasonable time for the notice of lack of conformity of the goods or which is the place of delivery (including Incoterms) with a view to ascertaining the competent court (and thus dealing with forum shopping’s issues);
  • some decisions ascertain which is the competent court when dealing with an international sales contract, applying for example EU Regulation no. 44/2001 (precedessor of no. 1215/2012), or the Brussels Convention of 1968;
  • in the same framework, arbitration is also frequently used in international trade law; the arbitral awards are intended to provide some cases (which are usually kept strictly private and confidential and not easily known) in which arbitrators have interpreted and applied CISG’s rules.

The book contains: 1) a list of the judgments and awards cited in chronological order, 2) the text of these judgments and awards, 3) the Italian (unofficial) text of the CISG, 4) a list of the Contracting States, and 5 ) a reasoned analytical index that constitutes the true asset and  increases the usefulness of the book.

Title: Maura Alessandri, “Casebook sui contratti di vendita internazionale. Raccolta ragionata della giurisprudenza italiana (sentenze e lodi arbitrali) sulla Convenzione di Vienna del 1980 sui contratti di vendita internazionale di beni mobili (CISG)”, Bologna, Bonomo Editore, 2020, ISBN: 978-88-6972-156-4

Available at Bonomo Editore or on Amazon.

 

 

 

 

Does the Posting of Workers Directive apply to road transport operations? Conclusion of AG Bobek to the pending CJEU FNV case

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by Fieke van Overbeeke, Legal Counsel at the International Institute for International and Foreign Law – the Netherlands and research fellow at the University of Antwerp – Belgium.

 On 13 December 2018, the Dutch Supreme Court (Hoge Raad) has submitted a long-awaited preliminary question to the Court of Justice of the EU (C-815-/18): does the Posting of Workers Directive apply to road transport operations? The referring judgment (in Dutch) is available here.

The Posting of Workers Directive (96/71/EC) contains ‘mini’ conflict of laws rules for some important labour law regulations, such as minimum wages. These rules determine i.a. when these labour law regulations are mandatorily applicable in cross-border labour flows in the EU and consequently can have a profound impact on cross-border road transport operations. The aim of the Directive: to balance the free movement of services, worker protection and fair competition.

But why did this preliminary question actually need to be posed? It seems unconventional to assume that this Directive, which generally aims to regulate labour flows in the EU, should not apply to the particular labour flows in the road transport sector. The background of this ambiguity is that the Directive has been developed particularly in view of the labour flows in the construction sector and is tailored accordingly. In this sector, it is often about relatively simple facts: a construction worker usually works in Member State A and is temporarily posted to Member State B to work only in that state. The ‘scope rules’ of the Directive mirror this situation: a part of the labour law regulations of the temporary country of work, other than the country of usual employment, must be guaranteed to the worker (art. 2(1) Posting of Workers Directive).

These ‘scope rules’ are indeed difficult to apply to the atypical labour flows in road transport. There are many different employment models in road transport, but the common denominator is that, in principle, labour is not performed in one temporary country of work, but in a whole number of consecutive ‘very’ temporary countries of work, and, additionally, precisely because of these highly mobile activities it is often impossible to designate a country of ‘usual’ employment.

A perfect illustration is the employment model in the FNV case that forms the basis of the preliminary questions to the Court of Justice EU. In short: a Hungarian transport company posts drivers to a Dutch transport company to carry out transport in and from the Netherlands throughout the EU. The drivers are paid the lower Hungarian salary. The trade union FNV does not agree with the drivers being paid this lower salary and initiates court proceedings against the Hungarian transport companies before the Dutch courts.

Ruling in first instance: the Posting of Workers Directive applies; the ‘where’ scope rule of the Directive also includes the ‘from where’-rule. Consequence: the Dutch (minimum) wage is due. Ruling in second instance: the Posting of Workers Directive does not apply; the Directive cannot be interpreted as that it contains a ‘from where’-rule. Consequence: the Dutch (minimum) wage is not due. The Supreme Court concluded that this is not an acte eclair or éclairé and submitted the case to the Court of Justice EU.

In his conclusion of 30 April 2020, AG Bobek provides his take on the matter: 1. The Posting of Workers Directive applies to the road transport sector; 2. In order to qualify as a ‘temporary country of work’ within the meaning of the Directive, there must be a sufficient connection between the working activities and the country of work (and thus, in a sense, the Directive includes a ‘from where’-rule). E.g. according to the AG, the mere crossing of a territory (transit operations) will, as a rule, not meet the requirement of a sufficient connection, whereas posting drivers from transport company A to B to work in and from the premises of transport company B gives a good indication of a sufficient link. This seems to be good news for the trade union FNV.

AG Bobek’s conclusion is in line with the general assumption of the EU legislator that the Posting of Workers Directive applies to road transport. During the development of the new Posting of Workers Directive in 2018, which explicitly excludes the road transport sector from its scope (for the time being), the EU institutions (Council, Parliament, Commission) stated that the Posting of Workers Directive applies to road transport:

‘The new elements of this Directive will apply to the transport sector once the sector specific legislation (currently under negotiation) enters into force. Until that moment, there is a clear understanding by the three institutions and the Member States that the rules of the 1996 Posting Directive shall apply. This was called into question by a number of Member States in the past.’

From a legal point of view, this outcome can be well substantiated. Among other things, the AG points out that the Posting of Workers Directive fully excludes working activities in the maritime sector from its scope (Article 1(2) Posting of Workers Directive), which could indicate that the rest of the transport sectors are covered.

The AG also rightly rejects the argument that the Posting of Workers Directive does not apply to road transport because its legal basis is the free movement of services, which would not apply to the transport sector because this sector is regulated separately in the transport title of the TFEU (see in particular Article 58(1) TFEU). The AG considers it peculiar to interpret the scope of secondary EU law narrowly, in spite of the clear wording of the specific instrument. Moreover, according to the AG, this could create additional block exemptions, which are not contained, or at least hinted at, anywhere in the text of such a secondary law instrument. The AG then refers to other sectors that are regulated separately in the Treaties, such as public health, energy, tourism or culture and states that it would be a stretch to conclude that the Directive also misses application to working activities in these sectors. Finally, the AG indicates that, in any event, it is generally considered that legislation based on the free movement of services could apply to the transport sector.

The fact that the legal basis of the Posting of Workers Directive has no implications for its applicability to the transport sector was actually long and widely assumed. However, a recent judgement of the CJEU in the Dobersberger case (C-16/18) caused a great deal of confusion in this respect and the AG was therefore obliged to pay more attention to the matter. In the Dobersberger case it was about an employment model in a railway context; more specifically about the catering working activities of Hungarian personnel in trains, plying the route between Hungary, Austria and Germany. In this case, the CJEU starts its reasoning by observing that the legal basis of the Posting of Workers Directive is the free movement of services and that transport activities are regulated by the separate transport title; the Court then considers that catering activities (in a train) do not qualify as transport activities and that the case therefore could be examined in the light of the Posting of Workers Directive. By constructing its reasoning as such, the CJEU strongly suggests that the Posting of Workers Directive cannot apply to transport activities. Fortunately, AG Bobek now clarifies that the CJEU has not explicitly ruled that the Posting of Workers Directive cannot apply to transport activities and to that extent paves the way for the CJEU in the present FNV case to apply the Posting of Workers Directive.

Considering the general assumption of the EU legislator that the Posting of Workers Directive applies to road transport and the strong legal arguments mentioned above, it is to be expected that the Court will follow the AG in this respect.

Now that it has been established that the Posting of Workers Directive may apply to road transport operations, a second question must be addressed: when exactly can we speak of a temporary country of work within the meaning of the Posting of Workers Directive? The AG solves this question by pointing to the requirement of a sufficient link, which must be assessed on a case by case basis and taking into account all specific circumstances.

According to the AG, reference can be given to the interpretation of the habitual workplace criterion in Article 8 of the Rome I Regulation (Regulation 593/2008; the Directive’s ‘big brother’ that determines which employment law as a whole is applicable to the employment contract and to which the Directive can deviate with its mandatory labour law regulations).

In the Koelzsch case (C-29/10), the CJEU has given specific criteria for the interpretation of the ‘habitual workplace’ of Article 8 Rome I in the context of road transport operations, which, according to AG Bobek, is relevant for the definition of the temporary country of work in the Directive, since ‘both instruments seek to ascertain certain types of material connections between the worker and a given Member State’. The CJEU summed up various factors, such as the place: from which the work is carried out, where the work is carried out, where instructions are received, where the work is organised by the driver, where the lorries are parked, where the lorries are unloaded and to which the driver returns. The AG additionally points to the Nogueira case (C-168/10 and C-169/16) and the overall importance of aiming to reflect the ‘true nature of legal relationships’ and to prevent ‘circumvention strategies’.

It is more difficult to predict to what extent the AG will be followed by the Court on this second point. Indeed, the solution proposed by the AG concerning the sufficient link and the wide margin of appreciation can lead to very complex cases, which could turn out to be rather uncertain for transport planning in the sector. In addition, the EU proposal providing clarifications on the application of the Posting of Workers Directive to road transport operations (COM 2017, 278), currently under negotiation in Brussels, will not solve this either, given the primary focus of this proposal on bilateral, crosstrade and cabotage operations (without discussing the employment model of the posting of personnel between companies at all). See yesterday’s post on this blog and here for more information on this proposal.

To summarise: AG Bobek concludes that the Posting of Workers Directive can apply to road transport operations, which means that, i.a., the minimum wages of Member States where the drivers temporarily work must be guaranteed. This is in line with the general assumption of the EU legislator and is well founded in law. It is to be expected that the Court of Justice will follow the AG in this respect.

According to the AG, the criterion of a sufficient link should play an important role in determining the temporary country of work within the meaning of the Posting of Workers Directive. The criteria given by the CJEU in the Koelzsch case with regard to the definition of the ‘habitual workplace’ in the Rome I Regulation can provide guidance in this matter. It is more difficult to predict to what extent the Court will follow the AG regarding this point.

The author is a member of the International Institute for International and Foreign Law, a Hague-based NGO which has been providing legal consultancy to professionals (judges, lawyers, notaries, mediators etc.) regarding private international law and foreign law for over a hundred years.

 

 

CSA Okoli and RF Oppong, Private International Law in Nigeria (Hart Publishing, 2020)

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This book examines the rules, principles, and doctrines in Nigerian law for resolving cases involving cross-border issues. It is the first book-length treatise devoted to the full spectrum of private international law issues in Nigeria. As a result of increased international business transactions, trade, and investment with Nigeria, such cross-border issues are more prevalent than ever. The book provides an overview of the relevant body of Nigerian law, with comparative perspectives from other legal systems. Drawing on over five hundred Nigerian cases, relevant statutes, and academic commentaries, this book examines jurisdiction in interstate and international disputes, choice of law, the enforcement of foreign judgments and international arbitral awards, domestic remedies affecting foreign proceedings, and international judicial assistance in the service of legal processes and taking of evidence. Academics, researchers, and students, as well as judges, arbitrators, practitioners, and legislators alike will find Private International Law in Nigeria an instructive and practical guide.

The table of contents and more information on the book can be found on the publisher’s website: https://www.bloomsburyprofessional.com/uk/private-international-law-in-nigeria-9781509911165/

New EU conflict of laws rule for minimum wages in road transport on the way? – Background, state of affairs and implications of the 2017 EC proposal that is (still!) under negotiation

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By Fieke van Overbeeke, Legal Counsel at the International Institute for International and Foreign Law – the Netherlands and research fellow at the University of Antwerp – Belgium.

On 31 May 2017 the European Commission launched a proposal to adopt a special conflict-of-laws rule that determines (i.a.) which minimum wages apply to the highly mobile cross-border working activities of lorry drivers (COM 2017, 278). After more than three years of heavy debate, this proposal was profoundly modified and the Council and the European Parliament still do not find each other, leaving many aspects to be still worked out (see also the Legislative Train on the European Parliament’s website). The purpose of this piece is to give an overview of the background of this proposal, the current state of affairs and the possible influence of a special conflicts-of-law rule on the sector from a conflict-of-laws perspective.

The background of this proposal can be traced back to the unfair competition that has arisen in the EU road transport sector as a result of the enlargements of the EU to central and eastern EU Member States (in 2004, 2007 and 2013). This has led to a tripled increase in minimum wage differences between EU Member States. Given that labour costs are the largest expense in the provision of transport services, this creates a major competitive advantage for providers from low-wage EU member states.

In fifteen years, this has caused a metamorphosis of the road transport sector, with Eastern EU Member States now leading the lists of the largest transport providers in the EU. Several Western EU Member States, such as Germany and France, have responded to this competitive pressure by adopting their own national minimum wage legislation to be applied to transport operations on their territory. As a result, the EU road transport sector has become severely fragmented and the social position of drivers has been put under pressure. How could this have gone so wrong?

In the EU we have always agreed that it is not sustainable or responsible to allow competition that is purely based on labour costs. To this end, we have introduced minimum wages within the national borders and EU-wide we have developed the so-called ‘Posting of Workers Directive’ (1996/71). This Directive stipulates, amongst other things, that the minimum wages of the temporary country of employment must be applied if this is more favourable for the employee. In this way, it is ensured that efficient and innovative market players can actually compete on this efficiency and innovation (and thus not only on wage costs).

However, the Posting of Workers Directive did not come about with regard to road transport, but mainly with regard to the construction sector, where various social/economic problems arose in the 1990s. As a result, the Directive is very difficult to apply to the atypical and highly mobile road transport sector and this has led to widely divergent interpretations in the Member States, in many cases simply not enforcing the Directive at all with regard to this sector. In practice, this allows for direct competition on labour costs, with all its undesirable consequences as described above.

The EU legislator now wants to put an end to this situation by developing a special conflict-of-laws rule for minimum wages in road transport, which, among other things, determines to which transport operations the Posting of Workers Directive does and does not apply. The contrasts between Western and Eastern EU Member States, but also to some extent between central and peripheral Member States, makes for a lengthy legislative process lasting more than three years.

On 12 December 2019 the European Commission, the European Council and the European Parliament have reached a provisional agreement about some important aspects of the conflicts-of-law rule, which was approved to a certain extent within the institutions themselves in the following months: on 21 January 2020 the Parliament’s TRAN Committee accepted the provisional agreement informally by letter to the other institutions, the Council then adopted an official position on 7 April 2020 and the Commission gave its approval to the Council’s position on 14 April 2020 (subject to a number of matters not relevant here).

This looked very promising, but on 8 June 2020 the TRAN Committee suddenly threw a spanner in the works: the TRAN Committee adopted some severely different amendments compared to the position of the Council. If the plenary approves this, the negotiations will become very difficult. Yet, in this controversial legislative procedure it would not be the first time that the plenary rejects the position of the TRAN committee. To be continued!

If we take a closer look at the official position of the Council, a number of things stand out. Firstly, it is made clear that the mere crossing of a territory by lorries, also known as ‘transit’ operations, is excluded from the scope of the Posting of Workers Directive and that therefore the minimum wages of the crossed territory may not be applied to these activities. These operations are considered to be insufficiently closely connected to this territory and by extension the application of the minimum rates of pay cannot be justified.

On the other hand, the proposal provides that activities that remain within a certain territory, e.g. transport by a Polish transport company between The Hague and Rotterdam, also referred to as ‘cabotage’ operations, do fall within the scope of the Posting of Workers Directive and must therefore be subject to the minimum wages of the country where the cabotage is carried out from the first moment of the operation and if this is more favourable for the employee. These operations are deemed to have a connection only with the territory on which the cabotage is carried out and the application for these minimum rates of pay is therefore justified. In short: green light for transit operations and red light for cabotage operations.

So far the newly adopted amendments of the TRAN committee from the European Parliament on 8 June 2020 are largely in accordance with this.

But what about those intermediate forms of transport, such as bilateral transport operations between Member States A and B, or so-called ‘crosstrade’ operations carried out by a transport company from Member State A between Member States B and C? This is a lot more complicated and has been a hot issue in the legislative negotiations. Ultimately, the Council agreed to exempt bilateral transport operations, whether or not in combination with a maximum of two consecutive operations, from the Posting of Workers Directive, and therefore the minimum wages may not be applied to these operations. Crosstrade, on the other hand, must, according to the proposal, fall under the Posting of Workers Directive and are therefore subject to the minimum wages, from the first moment of this operation and if this is more favourable to the employee.

This does not sit well with the TRAN Committee, which states in its recently adopted amendments that: 1) on the one hand there should be much more possibilities to combine a bilateral transport with other transport operations and 2) on the other hand that a ‘certain number of cross-trade operations should be exempted from posting rules.’ The TRAN Committee thus opts for a much more liberal point of view. It seems that the Corona crisis also exerted influence on the discussions: many East-European Member States now regress to the argument that the road transport sector already severely suffers from the Corona crisis and point to the pivotal importance of the delivery of medicine and goods, which should release transport companies from the obligation to safeguard the social protection of their drivers.

Whatever the outcome of the negotiations, it is already clear that if a special conflict of laws rule for road transport will be adopted, it can be seen as a real ‘game changer’ for the sector since it would bring much more legal certainty regarding the application of the Posting of Workers Directive. Regarding some transport operations, internationally operating transport companies will have to take serious notice of the minimum wages they have to guarantee their drivers. Non-compliance with this new legislation is strongly discouraged: along with the new posting rules, the EU legislator aims to provide for a whole package of enforcement and control measures that are mandatory for the Member States and in which, for the first time, the EU legislator also keeps aspects under its own control.

New enforcement authorities should also be taken into account. In addition to possibly setting up a European road transport agency in the future, the more general European Labour Authority (ELA) has been set up in 2019, with the true mandate ‘to promote fair labour mobility within the EU’. It is expected that the ELA will be able to play a far-reaching role, unprecedented in the history of the EU, in the enforcement of social legislation; including in the road transport sector.

See for more information on this topic my recent article ‘Posting drivers in the EU road transport sector’, ERA Forum 2020 (freely available online). For those who read Dutch, see my PhD ‘Sociale concurrentie en conflictenrecht in het Europees wegtransport’, University of Antwerp 2018 (freely available online).

* The author is a member of the Hague-based ‘International Institute of International and Foreign Law’: www.iji.nl, which has been providing legal consultancy to professionals (judges, lawyers, notaries, mediators etc.) regarding private international law and foreign law for over a hundred years.

 

The annual seminar of the Mexican Academy of Private International and Comparative Law will take place online from 18 to 20 November 2020

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The Mexican Academy of Private International and Comparative Law (AMEDIP) will be holding its XLIII Seminar entitled “Private International Law in the current international climate” from 18 to 20 November 2020 for the first time online!

One of the topics to be discussed is COVID-19 and private international law. In addition, two Hague Conventions feature prominently in the list of topics submitted for discussion: the 1996 HCCH Protection of Children Convention and the recent 2019 HCCH Judgments Convention.

Potential speakers are invited to submit a paper in Spanish, English or Portuguese by 16 August 2020. Papers must comply with the criteria established by AMEDIP and will be evaluated accordingly. Selected speakers will be required to give their presentations preferably in Spanish as there will be no interpretation services but some exceptions may be made by the organisers upon request.

Participation is free of charge. The platform that will be used is Zoom and it will also be streamed via Facebook Live. For more information, please click here.