The Belgian requirement to rely on recognized dockers to perform dock work passes the ECJ test… the recognition procedure of dockers does not
In a long-awaited court ruling, the ECJ confirmed on 11 February 2021 that the Belgian rules on dock work, obliging companies to have only recognised dockers carry out dock work in ports, does not necessarily constitute a violation of the free movement of workers, the freedom of establishment and the freedom to provide services. However, the ECJ rejected several modalities of the recognition procedure of such dockers. Legislative changes are now inevitable.
Setting the scene: the Belgian legal framework on dock work
A key element of the Belgian legislation organising dock work is that dock work in port areas can only be carried out by recognised dockers. In other words, companies carrying out activities in Belgian ports do not have a free choice in selecting their staff: they are required to use recognised dockers, even for logistical tasks. This principle has been subject to criticism for several years as it is often perceived as restricting the freedom of establishment, the free movement of workers and the freedom to provide services as guaranteed under European law.
Furthermore, the Belgian dock work legislation contains the following specific features:
- One administrative commission, jointly composed of employers’ organisations and workers’ organisations, decides about each recognition request and decides whether or not the recognised docker must be included in a quota. If a docker is not included in such a quota, then this has an impact on the duration of the recognition.
- The administrative committee is not bound by a legal time period within which it has to take a decision about a recognition request.
- If a recognition request is refused, then a docker can only initiate judicial proceedings as no administrative appeal is possible.
- To become a recognised docker, one must be declared medically-fit for dock work by a specific external service for prevention and protection at work, must pass psychotechnical tests, attend a three-week preparatory course, and pass a final exam.
- Specific rules and conditions apply when a recognised docker would like to take up a job in other port areas.
- Logistics workers must possess a “safety certificate”.
Impact of the Belgian legislation on dock work on the recruitment of dockers
As a result of the recognition requirement, not only Belgian (logistics) companies have been limited when recruiting dockers. Also foreign companies who intend to develop business activities in Belgian port areas, have to rely on recognised dockers; these companies cannot simply post foreign workers to Belgian port areas to carry out certain dock work. Both Belgian and foreign companies and foreign dockers have often felt restricted by the Belgian dock work legislation.
Following legal action undertaken by two major players in the Belgian sector, the ECJ was asked to rule about the validity of the Belgian dock work legislation in the light of EU law. Both the Council of State and the Constitutional Court sent requests for preliminary rulings to the ECJ, the former regarding the 2004 Royal Decree and the latter regarding the 1972 Act, both dealing with dockers.
The ECJ has confirmed to a large extent the compatibility of the Belgian dock work legislation with EU law but the Belgian legislator is not entirely ‘off-the-hook’
The ECJ has had to answer an entire set of preliminary ruling questions in which the validity of the Belgian dock work legislation was questioned from different angles. We summarise the key holdings by the ECJ below:
- Requiring that only recognised dockers can carry out dock work does not constitute a violation of the freedom of establishment and the freedom to provide services provided the aim is to ensure safety in port areas and to avoid workplace accidents.
As a result, the conditions to become a recognised docker must only relate to whether the dockers have the qualities and skills necessary to ensure such dock work is carried out in safety.
However, it is disproportionate if this safety training is only provided by one specific institution in the member state (here, Belgium) and if specific (safety) skills that workers have acquired abroad are not taken into account at all.
Finally, imposing a quota on the number of recognised dockers is also disproportionate to the aim of ensuring safety in port areas, especially since the question of whether or not a docker is included in the quota has an impact on the validity of his/her recognition. If a docker is not included in the quota, then their recognition is limited to the duration of their employment contract. Hence, each time a docker enters into a new employment contract, he or she has to go through the recognition procedure.
- A recognition procedure, such as the one applying in Belgium, is not necessary and appropriate to ensure safety in the port areas.
First, there is no certainty that the members of the administrative commission, which is responsible for the recognition, have themselves the required knowledge to verify whether a docker is able to carry out dock work in a safe manner.
Second, when deciding about the recognition applications, there is no guarantee that the members of the administrative commission decide in an objective, transparent and non-discriminatory manner. There is a risk that the employers’ organisations would refuse the recognitions of dockers active with competitors and a risk that workers’ organisations would refuse the recognition of foreign dockers to preserve local employment.
Finally, the observation that the administrative commission does not have to take a decision on recognising a docker within a reasonable timeframe was not held to be necessary and appropriate.
- The requirement to successfully pass certain tests and training to become a recognised docker was considered as a proportionate and appropriate manner to ensure safety at port areas, provided such tests and training are conducted with full transparency, objectivity and impartiality.
- A docker recognised to carry out dock work in a Belgian port area and who wishes to transfer to another Belgian port area must comply with several conditions and arrangements as set out in a specific collective bargaining agreement. The ECJ has ruled that such a feature restricts a docker’s freedom to take jobs in several port areas and restricts the freedom of an undertaking when it wants to rely on the services of a docker who has obtained his/her recognition in a different port area, unless the conditions and arrangements are necessary and proportionate to the objective of ensuring safety in each specific port area.
- It is possible to require from logistics workers to be in the possession of a “security certificate” provided that the conditions for obtaining such a certificate are necessary and proportionate and provided that the procedure to obtain such certificate is not too burdensome.
Legislative changes are inevitable
Following the ECJ’s ruling, the Belgian Council of State and the Constitutional Court will now have to make a final ruling on the Belgian dock work legislation, taking into account the ECJ’s considerations. Also, the case pending before the Constitutional Court was itself the result of a preliminary ruling request by the Belgian Court of Cassation, so that the latter Court will also have to rule on the matter.
It is likely that part of the Belgian dock work legislation will have to be put aside. Interesting debates can be expected in the coming months (and probably years) in which the different stakeholders will each lobby the Belgian government. Based on the ECJ’s ruling, the obligation to rely on recognised dockers will undoubtedly continue to exist. What the recognition procedure will look like in the future is difficult to predict, especially whether the employers’ and workers’ organisations will still have a role to play.
For more information on this topic, please do not hesitate to get in touch with Emma Van Caenegem.
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