Brussels, 21/02/2014 (Agence Europe) - On Thursday 20 February, the negotiators of the Council, the European Parliament and the European Commission failed to reach a compromise on the whole of the proposed implementation of the directive (96/71/EC) on teh posting of workers, although this was theoretically the last chance to adopt the text before the European elections, at the final plenary session of the Parliament in April. However, all hope is not yet lost, as a final attempt will be made at the meeting of Coreper (Committee of Permanent Representatives of the member states to the EU) on Wednesday 26 February, and then again the following day, between the negotiators of the three institutions.
The meeting of Coreper on Thursday 20 February was the opportunity to observe a somewhat rare phenomenon: almost all of the ambassadors oppose the new proposed compromise on Article 9 (national control measures and administrative requirements), whilst stressing the absence of any leeway to make even minor changes to Article 12 (legal responsibility in sub-contracting). This unanimity is particularly surprising as the Council went to great lengths to secure a political agreement in December 2013 and the two blocking minorities which existed at the time were not entirely in agreement over these two articles. This explains the problem the Greek Presidency will now have in proposing a text which covers every requirement and all of the various political interests.
The second attempt at compromise over Article 9 therefore failed, but not entirely. The strategy adopted by the Greek Presidency to save the negotiations continues to be to make a few concessions over Article 9, leaving Article 12 intact. Article 12, moreover, has scarcely been mentioned as yet in trialogue. A solution of this kind therefore appears to be the only one possible, both from a political point of view - as the positions clashed completely between the Council and the Parliament over Article 12 - and simply in terms of the time remaining to conclude this dossier before the end of the parliamentary term. Poland was the pivotal state which made it possible to secure the in extremis political agreement of the Council and it may now take the same role in seeking a compromise with the Parliament.
The ambassadors' rejection of the second compromise on Article 9 hides a few concessions made on various sides during the final negotiations on points already considered (see EUROPE 11021). Coreper ultimately conceded on the issue of bogus self-employment, which will indeed be dealt with under Article 3 (the elements which allow a secondment situation to be identified), as well as in a broader recital. However, the Parliament failed to secure a reference in the same article to the Rome I regulation, which would clarify the law applicable to the employment contract in ambiguous situations in which the status of a posted worker changes. The compromise already approved consists of broadly using the wording proposed by the Parliament, but just as a recital.
One of the most important points on which the negotiators have yet to agree in Article 9 concerns the role to be played by the Commission. The Parliament is proposing that the member states should no longer have to inform the Commission of new national control measures or administrative requirements they may decide to set in place, instead of having to notify these to it, which presupposes discretionary powers conferred upon the Commission. The Greek Presidency appears to take the view that this request is justified, as does the Commission. Commissioner Laszlo Andor (Employment and Social Affairs) told the trialogue meeting of Tuesday 18 February that he was favourably disposed to this option.
In the most recent compromise proposal, the Parliament abandoned its request to delete the notion of “proportionate and justified” regarding the introduction of new measures and requirements, but calling for the directive to allow the introduction of any measures a state deems necessary for its correct application. The Council, which has the support of the Commission over this point, opposes this and argues for the member states to be able to introduce “only” measures deemed appropriate. Also in Article 9, the question of the contact person for the posting company in the host state is still unresolved. The compromise solution, which the Commission supports, could consist of this person being contactable by the host state authorities electronically, rather than physically on the ground.
The meeting of Thursday 20 February between the negotiators left aside these controversial issues and focused on the revision clause (Article 16a). The Parliament has already complained at the lack of consistency in the various timeframes (see EUROPE 11018). Although the Council and Commission conceded this point, no consensus has yet been found on how to revise this article. Among the options is the possibility for the Commission not to wait five years to carry out its assessment of the directive as a whole, but to assess certain parts of it after two or three years. (JK/transl.fl)