Van Olmen & Wynant Special Report on Application of EU Posting Rules to Aircrew

In 2019, Van Olmen & Wynant was selected to provide a legal report on the application of the EU posting rules to aircrew. Three social partner organisations in the EU Sectoral Social Dialogue Committee on Civil Aviation applied for funding of the EU Commission under the EU call for proposal “support for social dialogue” for a project entitled “Should aircrew be declared posted? When, when not?” (grant VS/2019/0030). The Social Partners considered that, to progress in their social dialogue work on this matter, an external report by legal practitioners was necessary. The Van Olmen & Wynant report is therefore designed to facilitate this dialogue by summarising the current legislative framework and describing situations of employment of aircrew in the aviation industry falling and not falling under the scope of the Posting of Workers Directive.

Drafting the report

The Report on the application of the EU posting rules to aircrew is authored by Gautier Busschaert (Senior associate) and Pieter Pecinovsky (Of counsel), who are VOW’s specialists in EU labour law. They have submitted the Report at the end of 2019 to the EU sectoral Social Dialogue Committee on Civil Aviation. The social partners have added their comments and recently submitted it to the EU Commission for consideration of the regulatory steps that might be needed.

Content and findings of the report

The report has gathered insights on the national implementation of the Posting of Workers Directive and its application in the aviation sector in all 28 Member States. To achieve such an overview, VOW made use of a questionnaire that was completed by national legal experts of firms belonging to the L&E Global network and other befriended law firms. It became apparent that the suitability of the legal framework for the posting of aircrew might be questioned. The cause of this unfortunate situation is mostly legal uncertainty, caused by a lack of specific provisions (mostly at EU level), a multitude of interpretations and different implementations by the Member States, and a high level of unawareness amongst air carriers,aircrew and other stakeholders.

The main factor of legal uncertainty is the fact that it is very difficult to ascertain to which situation of aircrew employment the Posting of Workers Directive should be applied. Legal certainty could be reduced by the EU, if it made clear to the Member States and stakeholders when the Posting of Workers Directive should be applied, and when it should not. The Report evaluated whether certain situations should fall under the scope of the posting rules or not. This evaluation has led the research to deduct five important cumulative conditions and rules. It could be useful for the EU to use these conditions as guidelines for the application of the Posting of Workers Directive in the case of aircrew:

1. The posted aircrew worker has an employment relationship;
2. The posting falls within the framework of one of the three situations in art. 1.3 Posting of Workers Directive;
3. The aircrew is posted under a temporary assignment;
4. The posted aircrew is assigned to a secondary base in a Member State other than where he/she has his/her home base;
5. The aircrew is supposed to return to the home base at the end of the posting.

The report ends with the recommendations for the EU Commission to create a practical guide on the application of the posting rules to aircrew, to improve the enforcement of the posting rules in the aviation sector with the help of the European Labour Authority and to confront the issue of bogus self-employment.

Contributors

Van Olmen & Wynant would like to express its gratitude to the following contributors to the report, among others:

• Germany: dr. Dirk Freihube and ms. Meike Rehner, Partner and Counsel at Pusch Wahlig Workplace Law, Frankfurt am Main
  
• Luxembourg: mr. Philippe Ney, Partner at Kleyr Grasso, Strassen
• The Netherlands: mr. Karol Hillebrandt, Partner at Palthe Oberman, Amsterdam
• Poland: ms. Alina Giżejowska, Partner at Sobczyk & Partners, Cracow
• Portugal: ms. Paula Ribeiro Farinha, Managing Associate at Morais Leitão, Lisbon
• Romania: ms. Corina Radu, Partner at SCA Magda Volonciu & Associates, Bucharest
• Sweden: mr. Robert Stromberg and mr. Jonas Lindskog, Partner and Senior Associate at Cederquist, Stockholm
• UK: mr. Nick Elwell-Sutton and ms. Ruth Bonino, Partner and Professional Support Lawyer at Clyde & Co, London

Van Olmen & Wynant would also like to thank the members of the steering committee for their feedback and input.

To download the report, click here.

For more information please contact Joseph Granato, Communications Manager at L&E Global at joseph.granato@leglobal.org.