Brussels, 24/01/2014 (Agence Europe) - On Thursday 23 January, the interinstitutional negotiations on the new legal framework for posted workers made an initial step towards resolving the most delicate issues. Some progress was made, as in the previous meeting too (see EUROPE 10988), but on points that do not lend themselves to an outburst of passion. The negotiators are all aware that the final compromise will be delicate to reach - especially given the difficulty with which the Council of the EU and the European Parliament's employment and social affairs committee managed to adopt their respective positions - which are very different from each other.
The Council's political agreement was reached in Brussels on 9 December (see EUROPE 10980) and was achieved - after hours of horse-trading - by amending the last articles of the text “on all fours, in the corridor”, according to someone who witnessed the scene. This particularly concerned Article 12 on the specific measures for guaranteeing the respect of employment conditions by sub-contractors. Many ministers were opposed to this, but the principle of joint and several liability in the construction sector was finally left in the text. At the last moment, Poland backed a compromise put forward by France, which involved not making this principle obligatory, by offering - in a direct sub-contracting relationship - the option of setting up “effective and proportionate sanctions against the contractor, to tackle fraud and abuse in situations when workers have difficulties in obtaining their rights”. This formula offers enough flexibility to the states that do not want to establish joint and several liability themselves.
This position is finally more flexible in comparison with those of the other institutions. The European Commission proposed making the direct sub-contractor liable in the construction industry, even though it offered an exemption from this liability if the contractor proved respect for the obligation of vigilance. This obligation also appears in the Council text, but it has disappeared from that of the Parliament. At the end of June 2013, MEPs adopted the firmest position - against the own opinion of the rapporteur Danuta Jazlowiecka (EPP, Poland). Their position was that the liability of a contractor can be engaged in all sectors regardless of whether the relationship with a sub-contractor is direct or indirect. It is here, therefore, that the trialogue negotiations risk being the fiercest.
The second challenge will consist of finding an agreement on the national control measures and administrative requirements for tackling circumvention of the rules in force on labour conditions (Article 9). The Parliament and Council have considerably different approaches and it is for this reason that the last negotiation meeting on Thursday 23 January lasted so long - even if it only dealt with this article indirectly. This can be explained by the fact that Article 3 (the factual elements characterising posting) was discussed but not finalised, and Article 9 are intrinsically linked - the nature of one determining the nature of the other.
Article 3 relates to the scope of application of the whole directive as it indicates the elements that enable a situation of posting to be identified. The negotiators have recently dealt with the status of a false self-employed person - the Parliament having proposed to extend the range of the text considerably so as to fight against this type of fraud, which is not to the liking of the member states, which want to limit the fight against posted worker fraud to employees. The Commission's idea and that of the Parliament's rapporteur of having a common base of elements that determine the situation of posting has been rejected by the Council and the majority of MEPs.
While a compromise is still attainable on Article 3, due to the fact that the general approach is ultimately the same between the Parliament's negotiators and those of the Council, the situation becomes complicated with Article 9. Both articles are linked, but the Parliament has opted for a hybrid solution in Article 9 - a solution which is between the positions of the Commission and the Council. The list of national control measures and administrative requirements is open, but with an obligatory base. This idea of imposing precise measures will be difficult to accept for the Council negotiators, who know that the balance that has been found between the member states on this issue is extremely fragile (only an indicative list). This issue, with Article 12 on the liability of sub-contractors, has been left open for the last rounds of the negotiations. The next meeting, which will focus on closing Article 3, while opening Article 9 at the same time, is scheduled for 28 January. (JK/transl.fl)