Status of aircrew: does the Commission have ulterior motives?
The European Commission is preparing under the leadership of Jacques Barrot, Commissioner for Transport, a text which will "specify and clarify the labor law applicable to mobile air personnel", according to one of his relatives. Deadline: June 2008. The objective is laudable: it involves resolving many conflicts between airlines and their employees (line pilots, hostesses and stewards). And the problem is real: since planes can shuttle between several European capitals during the week, or even during the day, we can decently ask ourselves the question: Is it the company's headquarters, the place where the most often the plane, the place where the contract is signed or recruited, the pilot's place of residence or his nationality which must serve as a reference for the application of social rules?
But the real objective and content of this text seem very confused. As for the form, it is extravagant.
The Commission has chosen to settle this delicate question by issuing a communication. So an instrument devoid of any legal effect. To resolve legal problems, we can do better... Indeed, contrary to the assertions of certain close associates of Jacques Barrot, a communication (except in matters of competition law) has no opposable character, before the courts. But what counts for the Court is the applicable text, and what it means (if necessary by resorting to grammatical analysis, linguistic analysis or preparatory work). A subsequent communication, adopted only by the Commission, has no more value than an opinion of the same institution before the court. But that might please the airlines, a little brutally shaken by the new rules on passenger rights...
One could also be tempted to say: another communication! It should be noted that there have already been three communications recently on the posting of workers (2003, 2006, 2007), and one green book in 2003 on contract law, not to mention the debate on the Services Directive, and that the revision - and integration into Community law - of the Rome Convention is still in progress...
Finally, it may seem odd that it is DG Transport that is in charge of the file, whereas it is usually DG Justice (contracts) or DG Employment (posting of workers) who are on the front line.
For memory,
Two texts apply in Community matters: the convention of Rome on the law applicable to the contract and the 1996 directive on the posting of workers.
According to the first text, and on the strength of an expert from the European Commission: "as a general rule and in the absence of a choice, the law applicable to an employment contract is that of the country where the worker, in execution of his contract, If the worker does not usually carry out his work in the same country - and this will often be the case for aircrew or truck drivers - the contract is governed by the law of the country where the worker is located. establishment that hired the worker."
As for the second, it does not normally find application. According to a Commission spokesperson, "As a general rule, there is no posting situation within the meaning of Directive 96/71/EC, if a worker is part of the mobile staff of a company performing international transport and carries out, as such, its normal activity on the territory of two or more Member States. In this case, Directive 96/71/EC does not apply."
(NGV)
Dispute: cf. case between Ryanair employees and Charleroi airport (cnc file)
