Negotiations at the Council of the EU are far from over on the legislative proposal for a revision of the 1996 directive on posted workers. The positions of member states, however, particularly those from the West and East of Europe, finally became a little closer on Friday 7 October, thanks to a draft compromise submitted by the Slovak Presidency of the Council (see EUROPE 11640), which some have described as a "good basis for work".
The member states most in favour of the European Commission approach are mainly those from Western Europe. On Friday during the meeting of the Council workgroup, these countries expressed their wish to leave the proposal as it stood. Some of these countries, including France and Belgium, however, indicated that they were also prepared to discuss the idea put forward by the Slovak Presidency to guarantee the application of additional rights proposed by the Commission to workers (access to complete remuneration instead of just the minimum wage) but only on the basis of a certain period of posting to be established. The Czech Republic is among the countries opposing any revision of the directive but it also said that it was prepared to attempt to find a compromise. Poland and Hungary, however, are particularly keen to avoid the notion of "remuneration" being maintained in the text.
The Council's work is therefore expected to go on for a few more months, despite the swiftness with which the Slovak Presidency put this idea on the table. Several different diplomatic sources emphasised that the positions of the member states are not at all set in stone and at this stage we are at the very beginning of the negotiations. In this connection, there are also a number of questions regarding the legal setup, such as the compliance of the different options with the Rome I regulation (the law applicable to contractual obligations), which has been the subject of a lengthy draft amendment from the Presidency, as well as the way in which cumulated postings can be calculated. According to a number of participants at Friday's meeting, the Commission's silence on these questions particularly annoyed many of the different national representatives.
The difficulties emerging, however, are multifold. If the Council continues to follow this draft compromise, it will clash with the problem of the number of months after which a posted worker can be granted additional rights. The nine months mentioned by the Presidency could pose a problem - a point raised on Friday by some of the delegations - particularly with regard to the data available on the question of postings. According to the impact study the Commission annexed to its proposal, the average duration of a posting is less than four months and does not even exceed 33 days in the member states where the phenomenon is most associated with "social dumping" (France, Belgium and Luxembourg).
The next working group meeting on the subject is planned in a month's time, whereas ministers are expected to debate it for the first time during the formal Council meeting in December. The prevailing opinion is that they should wait to see the opinion from the European Parliament before reaching a political agreement. This opinion is expected in April 2017 and its first outline is expected to be presented in November by the two co-rapporteurs: Elisabeth Morin-Chartier (EPP, France) and Agnes Jongerius (S&D, Netherlands). It is not, however, certain that this period of time is sufficient for the broad coalition governing Germany to ultimately reach a common position on the question, particularly because federal elections are fast approaching (autumn 2017). (Original version in French by Jan Kordys)