Belgian law, which reserves port work for recognised workers, is compatible with European Union law if it aims to guarantee safety in port areas and the prevention of accidents at work, the EU Court of Justice ruled in a judgment handed down on Thursday 11 February (cases C-407 & 471/19).
In Belgium, port work is governed by a specific law according to which only workers recognised as such can carry out this work. Adopted in 2016, a Belgian Royal Decree established the modalities for implementing the law.
In Case C-407/19, Katoen Natie Bulk Terminals and General Services Antwerp, two companies carrying out port operations in Belgium and abroad, seek the annulment of the Royal Decree, arguing that it hinders their freedom to employ workers from other Member States.
In case C-471/19, Middlegate Europe, a company sentenced to pay a fine for employing an unrecognised port worker in Belgium, contested the constitutionality of the disputed decree with regard to the principles of freedom to provide services (Article 56 TFEU) and freedom of establishment (Article 49 TFEU).
Referred by the Belgian Council of State and Constitutional Court, the Court found first of all that the regulation in question obliges service providers to use only port workers recognised as such. This regulation therefore constitutes a restriction on the two above-mentioned fundamental freedoms, a restriction which may be justified by an overriding reason relating to the public interest, provided that it guarantees the reality of the objective pursued and does not go beyond what is necessary to achieve it.
In the present case, the Court points out that the legislation at issue cannot - on its own - be regarded as disproportionate for achieving the objective pursued, namely the guarantee of safety in port areas and the prevention of accidents at work. It adds that these rules are compatible with the TFEU if the conditions and arrangements for applying the rules are based on objective, non-discriminatory criteria, are known in advance, and allow dock workers from other Member States to demonstrate that they meet, in their country of origin, requirements equivalent to those applied to dock workers established in Belgium, and that they do not establish a limited quota of workers benefiting from recognition.
Examining the compatibility of the contested Royal Decree with fundamental freedoms, the Court states that the Belgian legislation at issue also constitutes a restriction on the freedom of movement of workers (Article 45 TFEU) from other Member States. It assessed the necessity and proportionality of the different measures contained in the regulation.
In particular, a joint administrative committee made up of representatives of employers and trade unions is responsible for recognising port workers.
In this respect, the European court is of the opinion that this administrative committee is neither necessary nor appropriate to achieve the objective pursued. It is pointed out in particular that this committee decides, based on the need for workers, whether the recognised workers must be included in a quota of port workers (or not), knowing that the port workers not included in this quota benefit from a recognition limited to the duration of their work contract. Moreover, no maximum time limit is imposed on the administrative committee to take a decision.
Secondly, the Court examines the conditions for the recognition of dock workers. According to Belgian legislation, a worker must meet requirements of medical fitness, pass a psychological test, and have prior vocational training, unless he can demonstrate that he meets these requirements in another Member State. According to the European judge, these requirements are suitable conditions for ensuring safety in port areas and are proportional to this objective, and are therefore compatible with the TFEU Treaty.
Nevertheless, it is for the court which referred the case to verify that the task entrusted to the employers’ organisation and the dock-workers’ trade unions recognised in the designation of the bodies responsible for carrying out such examinations, tests, or trials does not call into question their transparent, objective, and impartial character.
Thirdly, the Court determined that the rule providing that the maintenance of the recognition obtained by a dockworker under a previous legal regime and his inclusion in the quota of dockworkers does not appear to be improper or disproportionate and is therefore compatible with the fundamental freedoms of the Treaty.
Fourthly, the judge is of the opinion that the rule according to which the transfer of a port worker to the quota of workers from a port area other than the one in which he has obtained his recognition is subject to conditions and modalities set by a collective labour agreement, is also in line with the freedom of movement.
It is nevertheless for the court which referred the case to verify that the conditions and arrangements laid down are necessary and proportionate in light of the objective of ensuring safety in each port area.
Finally, the Court states that a regulation - according to which logistics workers in port areas must have a safety certificate, the terms of issue of which are laid down in a collective labour agreement - is not incompatible with the fundamental freedoms of the Treaty. However, the conditions for issuing such a certificate must be necessary and proportionate to the objective of the Belgian regulations. Furthermore, the procedure for obtaining the certificate must not impose unreasonable or disproportionate administrative burdens.
See the judgment: http://bit.ly/3aTB1ZH (Original version in French by Mathieu Bion)