Brussels, 28/11/2013 (Agence Europe) - Less than two weeks ahead of the meeting of European labour ministers, new proposals on the posting of workers have been drafted and will be discussed by member states' national representatives to the European Union (Coreper) on Friday 29 November. On the same day, French President François Hollande will meet Polish Prime Minister Donald Tusk in Poland with a view to ending the east-west divide on this issue, which is making it unlikely that the Council of Ministers will be able to reach agreement.
On Tuesday 26 November, national delegations discussed a new draft compromise submitted by two groups of countries on implementation of EU Directive 96/71/EC on the posting of workers. The compromise covers the two points that prevented the Employment and Social Affairs Council in October from reaching agreement (see EUROPE 10943), namely Article 9, on application conditions for national control measures, and Article 12, on special measures to ensure that subcontractors respect employment conditions.
The most recent amendments suggested for Article 9 are now backed by France, Germany, Belgium, Luxembourg and Italy. The new Article 12 has slightly wider support, with Bulgaria, the Netherlands, Romania, Slovenia and Spain now joining the five countries that drafted the new version of Article 9. The two groups are being opposed by the United Kingdom and Poland, hence the French president's visit. The disagreement is still much the same as during the most recent negotiations.
The debate on Article 9 has always been about a closed list of national control measures, which restricts the type of measures that can be carried out by national authorities to detect fraud in the sense of the host country legislation not being applied for seconded workers, and an open list, which would establish a common group of measures, but allow for the special nature of national systems. The five countries' proposal is not new, as such, because it simply repeats their earlier position of an open list so that each country can add new measures, and the obligation to notify them to the European Commission, which would then communicate them to the other EU member states.
The question of national control measures is problematic, but is slightly less tricky than the question of joint and several responsiblity that would be introduced throughout the EU by Article 12. Some countries are unhappy about the compulsory nature of this, which would make all links of any subcontracting chain legally liable. As France constantly points out (the question is high on the public agenda), “strong” measures are needed. The proposal backed by the French government, along with nine other countries, is for joint and several responsibility to apply across the EU. In their most recent attempt to find a compromise, the ten countries suggest this be limited to construction, for work contracts worth more than €3,000 and if outstanding amounts not yet paid to posted workers exceed €750. At the same time, they suggest introducing due vigilance obligations, which would restrict company and subcontractor liability to circumstances laid down in national legislation.
The compromise suggests making substantial changes to the most recent compromise devised by the Lithuanian Presidency. The Presidency is not planning to issue a new compromise of its own, because the suggested changes are not very different from what was discussed in October 2013 and December 2012 (see EUROPE 10746). It is therefore no surprise that posting of workers is not on the agenda for the upcoming Employment Council, although it is possible that it might be discussed there. The new draft compromise has not yet been discussed by Council of Ministers' experts. (JK/transl.fl)