In a long-awaited court ruling, on 11 February 2021 the European Court of Justice (ECJ) confirmed that the Belgian rules on dock work, obliging companies to have only recognised dockers carry out dock work in ports, do 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 parts of the recognition procedure of such dockers. Legislative changes are now inevitable.
A key element of the Belgian legislation organising dock work is that dock work in port areas can be carried out only by recognised dockers. In other words, companies carrying out activities in Belgian ports have no free choice in selecting their staff: they must 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 EU law.
Further, the Belgian dock work legislation contains the following specific features:
- One administrative commission, jointly composed of employers' and workers' organisations, decides about each recognition request and decides whether the recognised docker must be included in a quota. If a docker is not included in such quota, this affects the recognition's duration.
- The administrative committee is not bound by a legal period within which it must make a decision about a recognition request.
- If a recognition request is refused, a docker can initiate only judicial proceedings as no administrative appeal is possible.
- To become a recognised docker, individuals must:
- be declared medically fit for dock work by a specific external service for prevention and protection at work;
- pass psychotechnical tests;
- attend a three-week preparatory course; and
- pass a final exam.
- If a recognised docker wants to take a job in other port areas, specific rules and conditions apply.
- Logistics workers must possess a safety certificate.
As a result of the recognition requirement, it is not only Belgian (logistics) companies that have been limited when recruiting dockers – foreign companies which intend to develop business activities in Belgian port areas must also 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 on 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, which both concern dockers.
The ECJ had to answer a set of preliminary ruling questions in which the validity of the Belgian dock work legislation was questioned from different angles. The ECJ confirmed to a large extent the compatibility of the Belgian dock work legislation with EU law but held that the Belgian legislature is not entirely 'off the hook'.
No violation of freedom of establishment and freedom to provide services
The ECJ held that requiring that only recognised dockers carry out dock work does not constitute a violation of the freedom of establishment and the freedom to provide services, provided that the aim is to ensure safety in port areas and to avoid workplace accidents.
Consequently, the conditions to become a recognised docker must relate only to whether the dockers have the qualities and skills necessary to ensure that such dock work is carried out safely.
However, it is disproportionate if this safety training is provided only by one specific institution in the EU member state (in this case, Belgium) and if specific (safety) skills that workers have acquired abroad are not considered.
Finally, the ECJ held that 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 a docker is included in the quota affects the validity of their recognition. If a docker is not included in the quota, their recognition is limited to the duration of their employment contract. Hence, each time a docker enters into a new employment contract, they must undergo the recognition procedure.
Recognition procedure is unnecessary and inappropriate to ensure safety in port areas
First, the ECJ held that 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 can carry out dock work in a safe manner.
Second, the court held that when deciding about 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 ECJ held that the observation that the administrative commission need not make a decision on recognising a docker within a reasonable timeframe was unnecessary and inappropriate.
Requirement to pass tests and training is proportionate
The ECJ held that the requirement to successfully pass certain tests and training to become a recognised docker is a proportionate and appropriate way of ensuring safety at port areas, provided that such tests and training are conducted with full transparency, objectivity and impartiality.
Transfer of dockers
Dockers recognised to carry out dock work in a Belgian port area who wish 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 ruled that such a feature restricts dockers' freedom to take jobs in several port areas and restricts undertakings' freedom when they want to rely on the services of dockers who have obtained their 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.
Logistics workers' possession of security certificates
The ECJ held that it is possible to require that logistics workers have 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 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. Further, the case pending before the Constitutional Court was itself the result of a preliminary ruling request by the Court of Cassation, so 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 different stakeholders will lobby the 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 employers' and workers' organisations will still have a role to play.
