Brussels, 14/06/2016 (Agence Europe) - Whilst waiting to know what the European Commission will do with its proposal for a revision of the 1996 directive on the posting of workers, following the “yellow card”, member states have continued their technical and legal discussions, giving rise to many questions at the Council workgroup.
The Commission may announce its decision to withdraw, amend or maintain its proposal amending this directive in a targeted way at the beginning of July (see EUROPE 11560). In the meantime, despite the misgivings expressed by Eastern European member states and Denmark, discussions at a Council working group level have begun on social questions. At least five meetings have taken place, at which several specific problems were raised that will be the subject of analysis and negotiations during the Slovak Presidency of the Council.
Several member states have raised the question of the legal basis of the Commission proposal. They referred to the possible need of adding a reference to the TFEU chapter on social policy, due to the fact that the proposal affects questions relating to pay and working conditions. This question is still pending.
The relationship between this proposal and Regulation 593/2008 on the law applicable to contractual obligations (Rome I) has been the subject of many interventions. This has been the case both in the context of the legal basis of the proposal and, more specifically, on the 24-month limit on postings. Several member states consider that the Commission proposal amends the meaning of Article 8.2 in this regulation. An opinion by the Council legal service is currently being analysed by the delegations.
The core of the new directive, in other words the reference to “payment” instead of and in place of the “minimum wage” has also been addressed. The Dutch Presidency of the Council believes that it may be appropriate, in an effort to provide some sort of guarantee to opponents, to state more explicitly in the directive what the Commission has continually been repeating publicly, namely: this proposal does not encroach upon national competences when it comes to setting the level of salaries. The Presidency has suggested making an indicative comparison between the different national concepts of payment and the minimum wage.
Several delegations have raised the question of whether the idea of referring to fixed payment by the law or by collective bargaining of general applicability and on a voluntary basis throughout the subcontracting chain, would not undermine fundamental rights (the negotiation and conclusion of these agreements). Given the importance that these agreements could have on determining posted workers' payments, the question about the ease consulting them has also been raised. The relationship between the proposal and the directive on temporary work (2008/104/EC) has also raised a number of questions.
Currently, the discussions between the member states are thus limited mainly to asking questions or expressing doubts, and the member states are for the time being awaiting the decision by the Council on what path to follow. Employment ministers will be meeting in Luxembourg on Thursday 16 June but are only expected to look at the progress made on the dossier. This will have to be managed by the Slovak Presidency as from 1 July, but this government has not in fact previously appeared in favour of such a revision. (Original version in French by Jan Kordys)