• Kegels & Co

Are article 1 and 2 of the Belgian Harbour Labour Act in conflict with article 10 and 11 of the Belg

On 6 June 2019 the Belgian Constitutional Court had to decide on the conformity of the Belgian Labor Act with the Belgian Constitution. The Court asked the European Court of Justice for a preliminary ruling.

The company ‘Middlegate Europe’ organizes the international carriage of goods by road. An employee of ‘Middlegate Europe, while preparing certain trailers with a tug master, for their carriage by sea from the port of ‘Zeebrugge’ to the UK, has been checked by the police services, and seemed not to be a recognized dock worker.

Because this was in conflict with article 1 of the Harbour Labour Act, stating that “no one in the harbour areas can let habour work be done by other employees than dock workers”, the police services imposed on ‘Middlegate Europe’ an administrative fine of 100 euros. Middlegate Europe’ brought the case before the Labour Court, which dismissed the claim. Because this decision was confirmed in appeal, ‘Middlegate Europe’ filed acase before the Supreme Court.

The Supreme Court then asked the Constitutional Court if article 1 and 2 of the Harbour Labour Act, stating that all work, materially and territorially related to the harbour, can only be done by a recognized dock worker is in conflict with article 10 and 11 of the Belgian Constitution, by limiting the freedom of trade and industry.

The Constitutional Court concludes in its decision of 6 June 2019 that companies, to be located in an harbour and to let get harbour work done, they are obliged to employ therefore dock workers, who are member of the Dock Workers Pool. This obligation is applicable on every company or person, despite their location (Belgian, or a European Member State). It seems to the Court that this rule discourages European companies from establishing themselves in the Belgian ports and having port activities carried out there.

The Constitutional Court therefore asked preliminary questions to the EcJ before taking a decision on the substance of the case. The questions are:

  • 1° whether the national legislation on recognized dock work constitutes an unjustified restriction on the freedom of establishment or the free movement of services guaranteed by Articles 49 and 56 of the Treaty on the Functioning of the European Union;

  • 2° and if so, whether it can maintain the effects of the national legislation for the time being in order to avoid legal uncertainty and social discontent and to enable the legislature to bring them into line with the obligations arising from European Union law?

With the second question, the Constitutional Court wants to avoid a situation of social unrest and uncertainty for the actual pool of dock workers.

To be continued,….

To read the entire decision of the Constitutional Court, follow this link.

If you want more information on the Belgian harbor act, please contact info@kegels-co.be