The SENSE teaching modules consist of two main parts. The first one is focused on the European Union law applicable to the field of cross-border road transport, namely the fundamental freedoms, private international law, posting of workers, social security coordination and social dialogue mechanisms. The second part of the project on the other hand is aimed at the national law perspective of four jurisdictions: Belgian, Dutch, Luxembourgish and Polish.
Besides the two teaching modules, the SENSE project also encompasses a third Module, which is the SENSE Legal App. The App will allow the drivers to be more aware about their legal rights and entitlement as it will be able to monitor exactly in which countries the transnational work is performed for which time periods and what the legal consequences are. During the project the App will be designed (pilot) for two countries. After successful implementation a (legal) up scaling in countries as well as other sectors is possible.
Teaching modules – Module 1 | EU law
The European Union cross-border road transport is a truly living organism operating at a supranational level. Due to the fact that the very essence of the road transport sector is dictated by its international element, it is not an easy field to navigate in terms of finding the applicable laws and regulations. In spite of the existing rules on cross-border transport, it is still sometimes shredded in ambiguity. In order to bridge the gap between the uncoherent and difficult to comprehend legislation, faulty operating provisions that could serve as a basis for circumvention of the laws and increasing legal uncertainty, this Module attempts to provide a thorough analysis of the key concepts of European Union law relating to the field of cross-border road transport, not only to provide a better understanding of the topic, but also, more importantly, to stimulate the problem solving skills, especially as far as the grey areas of the laws are concerned.
The main learning objective of this Module is to raise the awareness of the importance and the impact of European Union law on the employment and social rights of truck drivers engaged into cross-border road transport. Due to the inherent interrelation of different provisions of EU law that is applicable to the cases of cross-border road transport, it is of paramount importance to unravel the particular interrelations between different fields of law together with its implementation in national law in order to understand the core legal problems arising from application of the legal norms. Furthermore, the course is intended to accommodate the participants with an opportunity to benefit from mutual learning opportunities by making use of all available legal sources ranging from the Treaties, directives and regulations through case law, which supports the application of EU law.
Structure of the Module
This Module consists of five memoranda each depicting a vital topic for the EU cross-border road transport. The memoranda serve as a main course material for the enrolled participants.
The first memorandum sets forth the general legal framework depicting the basic operating mechanisms of the European Union internal market with a focus oriented at the personal and material scope of the three fundamental freedoms: free movement of workers, freedom to provide services and freedom of establishment. The core principle governing the fundamental freedoms embodied in the Treaties is the principle of non-discrimination, which however as shown, depending on the freedom, may have a different ambit.
The second memorandum on the other hand dwells into the problem of applicability of rules on private international law in the cross-border road transport. It is demonstrated that due to the intrinsic characteristic of the cross-border road transport, which is its transnational nature, conflict of laws may arise. The questions that need to be addressed upon such consideration are not only revolving around the law of which Member State is applicable to the case at hand, but also, the jurisdiction of the courts over the claim that is to be submitted. To bring coherency to the subject matter, which usually is regulated at the national level by the Member States, some legal regimes have been adopted by the EU that form a large part of EU law, which are further analysed in this memorandum.
The third memorandum concerns the posting of workers, who under EU law are not considered to be workers falling under the ambit of Article 45 TFEU, but instead, they fall under the scope of the provisions governing the freedom to provide services. Consequently, posted workers cannot enjoy fully the principle of equal treatment unlike workers do, because as argued, they do not form a labour market of a host Member State since they are supposed to provide their services temporary. Nevertheless, in order to eliminate the risks of circumventing the laws, the Posting of Workers Directive plays a pivotal role by guaranteeing a minimum set of hard-core rights to those workers who are posted to another Member State. Since the issue of posting is present in cross-border transport, as it happens to be the case that truck drivers are the ones being posted to deliver the goods from one Member State to another Member State, this legal instrument must be taken into account with regard to the issues concerning genuine posting and the enforcement of the existing rules on posting.
The fourth memorandum envisages the social security coordination at the European Union level. Since cross-border road transport possesses a transnational element, truck drivers could fall under a number of national legal regimes depending on the country of origin, transit countries and the country of the final destination, it is crucial to analyse to which social security scheme should the drivers be subject to so that they could enjoy all the corollary rights and benefits. This part of the Module dwells into the existing legal provisions regulating social security stemming from the hard law instruments as such and on top of that, case law, which particularly in this field, forms a substantial bulk of applicable rules whilst implementation.
Finally, the last memorandum addresses the social dialogue mechanisms. The social dialogue attempts to facilitate the cooperation between a vast array of stakeholders representing different positions, also in forms of collective bargaining, which in essence contributes to an overall improvement of strategic legal instruments by taking into account a wider perspective worked out in a course of negotiations and consultations. At the European level, social dialogue plays an important role between the associations of employers, trade unions and essentially the EU institutions that are obliged to take into account the stakeholders’ opinions on the legislative proposals. Therefore, as described, social dialogue cannot be omitted, nor disregarded, quite the contrary, it needs to be strengthened to achieve a fair level playing field for all involved in the cross-border road transport.