Denys Rudyi - Fotolia

Mediation between Member States

European Labour Authority adopts rules of procedure.

SW – 01/2022

From 2022, the European Labour Authority (ELA) will be able, in accordance with its mandate, to conduct mediation proceedings on disputes between EU Member States in the area of labour mobility. At its last meeting, the ELA’s administrative council adopted a dispute resolution procedure.

Mediation process

If two Member States fail to reach a common solution through direct contact, the case may be referred to the ELA for mediation at the request of one or both Member States. The aim of the mediation process is to issue a non-binding opinion with recommendations and solutions to resolve the dispute.

The first phase of mediation is conducted between the Member States involved in the dispute and a mediator, who jointly attempt to issue a non-binding opinion within 45 working days of their first meeting. In the case of complex disputes, the first phase may be extended by an additional 15 business days.

If no non-binding opinion is issued in the first phase, the ELA may initiate a second phase of mediation before a mediation committee, subject to the consent of the Member States involved in the dispute. The mediation committee, composed of experts from Member States other than those concerned by the dispute, shall seek to reconcile the positions of the Member States concerned and agree on a non-binding opinion. Experts from the committee may also be involved in the mediation in an advisory capacity.

With the rules of procedure, the ELA aims to provide national authorities with a mechanism to resolve employee mobility disputes in a timely manner. This could, for example, concern mediations between two Member States regarding minimum wage and working time in cross-border situations. Nevertheless, the ELA holds that it could also take action in disputes relating to the posting of workers and in the area of social security.

Risk of overlaps

Already in the run-up to the adoption of Regulation (EU) 2019/1149 of the European Council and of the European Parliament on the establishment of a European Labour Authority, there had been criticism that the demarcation between the mediation activities of the ELA and the mediation by the administrative committee for the coordination of social security systems was unclear and that there might be overlaps. This had also been pointed out by the umbrella organisations of the German Social Insurance.

Relationship with the administrative committee

Specific provisions of the regulation on the establishment of the ELA should prevent this. Thus, the ELA shall inform the administrative committee when a dispute relates to the coordination of social security systems (Article 13). Any Member State concerned and also the administrative committee in consultation with the Member States concerned may hereafter request that the case be referred to the administrative committee. However, insofar as mediation involves aspects that fall outside the scope of social security, ELA mediation may continue with respect to those aspects.

A cooperation agreement between the ELA and the administrative committee should also ensure good cooperation and help to coordinate activities by mutual agreement. It remains to be seen whether it will always be possible to clearly demarcate the cases involving the coordination of social security systems and specify the concrete form of cooperation in practice.