Private International Law: An Appropriate Means to Regulate Transnational Employment in the European Union?

13 Pages Posted: 11 Dec 2014

See all articles by Aukje A.H. Van Hoek

Aukje A.H. Van Hoek

University of Amsterdam Institute for Private Law

Date Written: November 30, 2014

Abstract

The regulation of transnational employment in the European Union operates at the crossroads between private international law and internal market rules. The private international law rules are currently laid down in the Rome I Regulation. This regulation is complemented by the Posted Workers Directive, a directive based on the competences of the EU in the field of free movement of services. The current contribution first describes the rules which determine the law applicable to the employment contract under Article 8 Rome I Regulation and the way these rules are interpreted by the CJEU before critically analysing these rules and the reasoning that seems to lie behind the court’s interpretation (section 2). The law applying to the contract is, however, only of limited relevance for the protection of posted workers. This is due inter alia to the mandatory application of certain rules of the country to which the workers are posted, even if a different law governs their contract. This application of host state law is based on Article 9 Rome I Regulation in conjunction with the Posted Workers Directive. Section 3 describes the content of these rules and the – to some extent still undecided – interaction between the Rome I Regulation and the PWD. The conclusion will be that there is an uneasy match between the interests informing private international law and the interests of the internal market, which is not likely to be resolved in the near future.

Keywords: private international law, applicable law, overriding mandatory provisions, transnational employment relations, posting of workers

Suggested Citation

Van Hoek, Aukje A.H., Private International Law: An Appropriate Means to Regulate Transnational Employment in the European Union? (November 30, 2014). Erasmus Law Review, Vol. 7, No. 3, 2014, Available at SSRN: https://ssrn.com/abstract=2536317

Aukje A.H. Van Hoek (Contact Author)

University of Amsterdam Institute for Private Law ( email )

Amsterdam, 1000 BA
Netherlands

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