Highly mobile workers challenging Regulation 883/2004: Pushing borders or opening Pandora’s box?
| Published date | 01 October 2020 |
| DOI | 10.1177/1023263X20940137 |
| Date | 01 October 2020 |
| Subject Matter | Articles |
Article
Highly mobile workers
challenging Regulation 883/
2004: Pushing borders or
opening Pandora’s box?
Eva van Ooij*
Abstract
This research paper aims to highlight hurdles that EU citizens may encounter when exercising
their social security rights while working across borders. With the focus on the worker who
is highly mobile in the sense of performing various work activities in two or more Member
States, the paper analyses how the current system of coordination copes with the increasing
mobility in the European labour market. On the basis of an illustrative case, it demonstrates
where and explains why high mobility leads to legal and practical ambiguities due to the
different interpretations of the rules determining the applicable law, particularly Article 13 of
Keywords
EU social security law, Regulation 883/2004, multiple jobs, cross-border, highly mobile worker
1. Introduction
A. Setting the scene: A changing European labour market
Today, it is no longer unthinkable that a resident of Amsterdam works part-time for a French
employer that holds office in Brussels while working two days from home per week next to having
* PhD Researcher, International and European Law Department and Institute for Transnational and Euregional Cross
border Cooperation and Mobility/ITEM of the Faculty of Law at Maastricht University
Corresponding author:
Eva van Ooij, Faculty of Law, Maastricht University Room B 2.006c, Bouillonstraat 1-3, 6211 LH Maastricht, PO Box 616,
6200 MD Maastricht, The Netherlands.
E-mail: eva.vanooij@maastrichtuniversity.nl
Maastricht Journal of European and
Comparative Law
2020, Vol. 27(5) 573–597
ªThe Author(s) 2020
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DOI: 10.1177/1023263X20940137
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MJ
MJ
an own company.
1
Nor are eyebrows raised when a professor holds a position at the Humboldt
Universita¨t in Berlin and at the same time teaches at European University Institute in Florence
while doing empirical fieldwork in the south of Spain. These are not hypothetical or far-fetched
examples, but actual reality.
Technological advances have expanded the possibilities for mobility tremendously: not only
can one move faster and cheaper from location A to location B, technology has also changed our
working practices. It is no longer necessary to move physically as the internet connects people to
an incredible number of other people or networks who would otherwise be far out of their sight.
Working can easily be supra-regional. The increased possibilities and velocity of physical and
virtual mobility affect people’s work patterns and working lives.
In parallel, the trend of favouring flexibility over stability on the European labour market has
led to a growing variety of work forms and job mobility.
2
Instead of being attached to one
employer in a ‘lifelong’ relationship, more and more people are moving from job to job, in and
out of different kind of working relationships, in and out of the labour market or combining several
working relationships at the same time.
3
Short-term mobility in the EU labour market does indeed
form an important part and is likely to increase in the future.
4
Furthermore, one can observe
different approaches to the organization of resources. The so-called ‘sharing economy’ provides
a platform for temporary access of physical assets between consumers, possibly for money; the rise
of gig economy meets the growing demand for accomplishing short-term and on-demand tasks.
5
These various trends are expected to cause a greater dualization of the labour market, where those
with a standard employment engagement
6
(insiders) have a different position in comparison to
those in more irregular or precarious work situations (outsiders).
7
Mobility is also seen as one of the cornerstones of the European integration project. Mobility of
workers, the possibility of providing services across borders and the freedom of establishment of
enterprises are seen as a tool to reduce regional imbalances on the Europe an labour market.
8
However, from a law perspective, mobility can complicate situations, especially when a person
pursues various economic activities and employs increased mobility opportunities while crossing
national borders. In such cases, different areas of law apply and give rise to legal complexity and
uncertainty. Due to its heterogenous forms, it is difficult to grasp the issue at its core.
1. The terms ‘work’ and ‘working’ refer in this paper to any economic activity independently of the work classification.
Note that there is no single definition of ‘worker’ in EU law applied as it varies according to the area. See inter alia Case
C-85/96 Marı
´a Martı
´nez Sala, EU:C:1998:217, para. 31.
2. Employment Outlook, The Future of Work (OECD, 2019); K. Stone and H. Arthurs, ‘The Transformation of
Employment Regimes: A Worldwide Challenge’, in K. Stone and H. Arthurs (eds.), Rethinking Workplace Regulation:
Beyond the Standard Contract of Employment (Russell Sage Foundation, 2013), p. 58.
3. Eurofound, New Forms of Employment, (Publications Office of the European Union, 2015).
4. F. De Wispelaere and M. Rocca, ‘The Dark Side of the Tour. Labour and Social Security Challenges of Highly Mobile
Workers in the Live Performance Sector’, ERA Forum (2020), p. 10.
5. Definition based on K. Frenken and J. Schorb, ‘Putting the Sharing Economy into Perspective’, 23 Environmental
Innovation and Societal Transitions (2017), p. 5–6.
6. Standard em ployment is defined as a ‘stable, open-e nded and direct arrangement bet ween a dependent, full-time
employee and their unitary employer’; M.J. Walton, ‘The Shifting Nature of Work and Its Implications’, 45 Indus-
trial Law Journal (2016), p. 112.
7. B. Greve, ‘The Digital Economy and the Future of European Welfare States’, 72 International Social Security Review
(2019), p. 81–82.
8. The EU free movement rights are defined by Articles 45, 49, 56 and 63 TFEU; K.F. Zimmermann, ‘Labor Mobility and
the Integration of European Labor Markets’, IZA Discussion Paper 3999 (2009), p. 11.
574 Maastricht Journal of European and Comparative Law 27(5)
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