Brussels, 06/12/2013 (Agence Europe) - On Monday 9 December, the labour ministers from the 28 EU member states will meet in Brussels to wage a final battle on the proposal relating to the implementation of the directive (96/71/EC) on the posting of workers. While the positions have been more or less fixed since October because “things have not for once been pre-cooked at the level of the national ambassadors to the EU”, this Employment Council will be a meeting “of true negotiations between the ministers”, according to a European diplomat's understatement, on Friday 6 December, to describe the political horse-trading which is likely to be extremely tough.
The negotiations will notably focus on two aspects of the directive - national control measures to fight against the circumvention of rules in force on employment conditions (Article 9) and the means of tackling fraudulent operations which are becoming more and more sophisticated (Article 12). The differing positions of the member states on these issues are already well-known (see EUROPE 10972), but in order to understand the arguments employed by various member states and to have an insight into the current stalemate and the potential solutions for getting out of it, EUROPE contacted several European labour ministries on the eve of the Council.
Poland is currently part of a group of states, alongside the UK, Hungary, Slovakia, Ireland, Croatia and Estonia, which are ready to support the compromise presented by the Lithuanian Presidency in October - but with certain adjustments to Article 9. For Warsaw, as for the European Commission, having a closed list would have been the best solution - in other words, creating a closed base of national control measures and administrative requirements for companies which use posted workers. This would ensure “transparency and legal clarity, which are of fundamental importance in cross-border situations”. An open list is a bad idea, according the Polish ministry, because having “an open array of control measures that can just be added to would complicate the situation of economic operators from other member states considerably. It would lead to a restriction on the free provision of services”. Nevertheless, Poland currently leaves the door open to a compromise, not rejecting “the option of a possible introduction by the member states of other control measures than those provided for in the directive”, although under “an effective monitoring mechanism”. This mechanism would be the equivalent of the Commission's involvement, but in more limited way for some (ex-post assessment of new national measures) or in a more extensive way for others (ex ante assessment).
France, Belgium and Bulgaria are in the other camp, countries that have for ever been arguing for an open or indicative list. Those countries subscribe to the general idea of having a common basis of flexible control measures. The Belgian ministry took the view that the main advantage of the open list is that member states that have already set specific control measures in place will be assured of keeping them. Furthermore, the open list allows, in future, measures to be taken that are adapted to any new fraud situations that may arise, it said. Similar arguments are used by France and Bulgaria which speak more of “flexibility”, so as to be “able to adapt the already used control measures to the different and changing forms of social fraud, social dumping and unfair practices in posting”. Discussion at the next Council should thus cover, in particular, the ways to frame control measures and administrative requirements that would not be specifically mentioned in the directive.
Regarding the specific measures intended to ensure compliance by subcontractors with the conditions of employment (Article 12), opinions are more clear-cut. Either all member states would be under an obligation to establish the principle of joint or several liability in the subcontracting chain (a proposal from France and Germany with eight other states), or this would be on a voluntary basis (a compromise proposal from the Presidency supported in particular by Poland and the United Kingdom). The principle currently exists in eight member states (France, Finland, Austria, the Netherlands, Belgium, Germany, Italy and Spain). The last compromise tabled proposes that this principle should be mandatory, but solely in the building sector, and subject to certain conditions. One might ask why in this sector alone. On one hand, that is the sector where the most posted workers are to be found, at least in France. And, on the other, as the Belgian Ministry of Labour pointed out, it is obvious that consensus would never be found on the principle of joint and several liability in all sectors. The idea supported by these ten countries - with the support of Denmark, Sweden and Finland - is therefore to provide for a compulsory system of joint liability in the construction sector, with regard to the relationship between the paying party and the direct co-contractor. The so-called joint liability would be established for the workers of the business which directly concluded the contract with the payer in line with the work they provide, the Belgian side states. Furthermore, member states would have the freedom to take stricter measures, mainly with regard to joint liability in the context of a sub-contracting chain, in order to pursue companies established on their territory and not to obtain a default judgment against a foreign company before then having to have the judgment carried out in another member state.
Poland, which for now is part of a minority blocking of principle with others, categorically refuses that such liability should be compulsory. The main reason given for this is that of discrimination in the context of the free movement of workers. Should this principle be established everywhere, an employer would have every interest in giving preference to a national contractor rather than a foreign contractor, as it is only the latter that would be subject to joint and several liability under the revised European directive. The Polish Ministry argued that, in addition, an entrepreneur looking for sub-contractors would in practice be compelled to devote more time and money to the assessment of foreign companies (preparation of documents, translation, differences in the legal systems), adding that foreign SMEs would logically be the first tom suffer. This concern is shared by the Commission president, José Manuel Barroso, who called on France in Paris on Friday 6 December to show “realism” and to seek a compromise that upholds “freedom of movement”, AFP reports. Poland has the largest number of posted workers (228,000 in 2011), after Germany (227,000) and France (144,000), according to data provided by the Commission.
No compromise text was drafted on the eve of the Council to reconcile this divergence of principle over Article 12. However, according to several European sources, wrangling is ongoing between the European capitals, with probably other dossiers also being brought into play. One European diplomat felt that the only compromise that seems possible is that of a compulsory principle of joint and several liability that remains limited to direct subcontracting in the building sector. The margin of negotiation would be found in the thresholds for triggering this principle, initially fixed at €3,000 (contract value) and at €750 (amount unpaid to a posted worker).
Other points on the agenda. Ministers could reach a political agreement with a view to improving coordination between the public national employment services, by formalising the network between them. A recommendation on the integration of the Roma could also be adopted. Ministers will then discuss the social dimension of economic and monetary union, with a possible agreement on the social and employment indicators in the European Semester. (JK/transl.fl/jl)