European Labour Authority supports its first concerted inspections

The European Labour Authority (‘ELA’), the EU agency tasked with ensuring that Union rules on labour mobility and social security coordination are enforced in a fair and effective way has recently supported its first concerted inspections. The most coveted (and feared by some at the same time) concerted inspections involved several Member States.

Under Art. 8(1) of the Regulation 2019/1149 of the European Parliament and of the Council establishing a European Labour Authority, at the request of one or more Member States, the Authority shall coordinate and support concerted or joint inspections in the areas within the Authority’s competence. The ELA may also, on its own initiative, suggest to the authorities of the Member States concerned that they carry out a concerted or joint inspection. What’s particularly important – concerted and joint inspections shall be subject to the agreement of the Member States concerned. At the same time, pursuant to motive 19 of the above-mentioned Regulation’s preamble such inspections should not replace or undermine national competences. National authorities should also be fully associated in the process of such inspections and should have full authority over them.

What are concerted inspections?

Concerted inspections are inspections carried out in two or more Member States simultaneously regarding related cases, with each national authority operating in its own territory, and supported, where appropriate, by the staff of the Authority. That constitutes the major difference with regards to joint inspections, which are carried out in a Member State with the participation of the national authorities of one or more other Member States (supported, where appropriate, by the staff of the ELA).

Fine-tuning the ELA’s competences concerning inspections was the most controversial issue and a precondition for its adoption. A compromise has been reached and it provided that no inspection could be carried out on the territory of a Member State against its will.

Off to a good start?

The very first concerted inspection was carried out on 21 September 2020. It marked a historic moment for the ELA – it was for the first time that it supported a concerted inspection, investigating construction companies in Belgium, Lithuania and Portugal. After unexpected setbacks posed by the pandemic, ELA personnel has actually joined labour inspectors on the field.

This concerted action represents a turning point in labour inspections across Europe. The inspectors have tested shared tools and procedures developed with the European Labour Authority, thus inaugurating a new course of action in the fight against undeclared work. ELA’s first ever inspection focused on a construction sector where the share of undeclared work is the highest. 2017 data, cited by the Authority, suggest that the very sector accounts for nearly 20% of all undeclared work taking place in the Union.

Concerted inspection involving Portugal and France

Another concerted inspection quickly followed suit. This time it took place on 29 September 2020 between the authorities of Portugal and France, under the umbrella of the ELA. Its aim was to verify employment contracts and compliance with the rights of temporary workers posted to France, within the construction sector. It was said to be beneficial in terms of allowing training of inspecting tools and methodologies developed by an international working group., still in the test phase, under the the European Labour Authority’s umbrella.

What future for next inspections?

One of the main issues before the creation of the ELA was that it needed to focus on eliminating abuse within the cross-border mobility. Much ink has been spilled over this issue, but the experts agree that the main source of abuse in this regard is undeclared work and bogus self-employment. It is therefore a relief that at least the first inspections are directed to tackle those abuses. Here is hoping the next inspections will follow the same pattern.

Marcin Kiełbasa Ph.D.