Lack of cooperation between States

The practical application of the posted workers directive gave rise to a great deal of criticism: posting was not precisely defined, monitoring was difficult, there was a lack of cooperation between the administrations of member States… A "directive related to the carrying out of the posted workers directive " is at present being negotiated within the councils of the European Union. "This negotiation will clear up some of the provisions of the directive and strengthen cooperation between States", says  Defossez. "The lack of cooperation is the main problem. It is necessary to make sure that States cooperate in verifying that entrepreneurs who say that they are carrying on a certain activity in a certain country actually are doing that. This will help prevent false foreign assignments or postings, such as might occur if workers travel back and forth too frequently. Such workers are to be considered as migrant workers who are pretending to be posted workers. The negotiations are likely to be difficult, particularly because rules about solidarity with regard to the payment of salaries are on the table; a contractor who uses a subcontractor that fails to pay his employees may end up responsible for paying them”.

According to Alexandre Defossez, no European measure is as clearly targeted against social dumping as the directive on detachment, but one can also see the influence of the fear of social dumping in the case of the liberalization of transport, which is taking place at a different pace than the liberalization of services or merchandise. "There are particular rules, for example those that deal with cabotage in truck transport. They limit the number of times a truck driver who offloads his cargo in one country can proceed to accept a cargo for delivery within that same country". 

The case of Ryanair             

In the transportation sector, air transport has most often given rise to arguments about social dumping in recent years. In Belgium, the Irish company Ryanair has appeared in the news because it employs its Belgian personnel in accordance with Irish standards, which means that their salaries and their rights to social protection are weaker. "General rules which were not adopted in order to fight social dumping allow us to determine what law is to be applied", noted Defossez. It is either a matter of the Regulation related to the social security of migrant workers, or a matter of the Regulation Rome I regulation concerning work contracts. These rules adoptthe most neutral criteria possible in order for workers to be governed under the legal regime that makes the most sense given their personal situation. The fact that the employer has its headquarters in such and such a country is becoming less of a determining factor. Rather, one takes into consideration the place where personnel are organized to perform their tasks (the place where workers receive the majority of their instructions, the place where they began and ended the services that they perform, etc.). Belgian law must find an easier way to be applied.
 
In his conclusion, Alexandre Defossez suggests that the problem of social dumping should be left aside, and not allowed to become a centre of European social policy. “When we analyze this issue within the European Union, it doesn’t lead very far. It is divisive. People have a tendency to think there are good guys with good social norms and bad guys with bad norms. Reality is more complicated. An effective social policy is very difficult to build. Instead of pitting one group of workers against another, we should let States develop national solutions, and admit divergences while continuing to try to fight abuse and fraud. When States bring before the Court of Justice of the European Union some argument having to do with the fight against social dumping, they are often concealing a protectionist objective. I recommend leaving this issue aside while concentrating on improving living conditions for all European workers, and building a true European social policy”.