On Thursday 8 December, just three member states expressed clear and unambiguous opposition to the proposal for a targeted revision of the European rules on the posting of workers, which suggests that the opposition is starting to crumble.
The political lines at the Council seemed to move slightly regarding the revision of the base directive on the posting of workers, tabled by the European Commission in March of this year, with the aim of implementing the principle of equal pay for equal work at the same workplace. At the meeting of the European employment ministers on Thursday, the difference between the positions of the member states of Western Europe and those of central and eastern Europe was still in evidence, but less pronounced than previously. The latter group seemed less united in their opposition to any revision of the directive of any kind.
No debate was scheduled to be held at the Council on the question, but 21 delegations took the opportunity to approve of the progress report prepared by the Slovak Presidency of the Council to take the floor at the public session.
The countries in favour of the Commission's approach were the first to speak. Germany, France, Belgium, Austria and Luxembourg mainly insisted that the new concept of pay, which is at the heart of this revision, should be applied from the first day of posting. In this way, they expressed their rejection of the idea defended by the Slovak Presidency of a dual system, in which the concept would apply only after a certain posting period (see EUROPE 11640).
An absolute refusal to countenance any revision of the directive whatsoever was voiced once again by Poland, Hungary and Latvia. The Czech Republic added its voice to theirs, but only after it had made clear that it was in favour of the idea defended by the Slovak Presidency. Incidentally, it was the only country explicitly to do so and certain diplomats interpreted its position as a sign of openness, albeit an uncertain one. Croatia expressed many doubts regarding several technical aspects of the revision. Of the other traditional opponents to the Commission's proposal, Estonia and Bulgaria did not take the floor. Romania, Lithuania and Denmark did, expressing, to different degrees, willingness to reach a solution.
On the eve of this Council, a diplomat representing a member state in favour of the revision said that they had come out of the paralysis of the East-West divide caused by the triggering of the so-called 'yellow card' procedure (see EUROPE 11598). We have moved away from a purely ideological opposition, which, the diplomat explained, should allow the work to progress under the Maltese Presidency of the Council, to start on 1 January, in parallel to the work of the European Parliament, whose draft opinion is now out in the open (see EUROPE 11679). Although the Polish government could not be won over, other members of the Visegrad group could be more open to a compromise, he added.
Does this mean that the East-West divide that appeared from the very start of the debate is now closing? According to one European source who attended the ministers' meeting, it is not that certain, as the differences of opinion over the technical aspects of the revision remain extremely clear, as shown by the most recent meetings of the Council working group (see EUROPE 11676). This source also pointed out that on 1 January, Slovakia will rejoin the camp of the most steadfast opponents to the Commission's proposal, and that some of the speeches made by the ministers in Brussels may just have been for show, as the session was a public one. The source went on to say that it was hard to imagine how Poland's opinion could possibly be got around in this dossier.
After the meeting, the Polish Secretary of State, Stanisław Szwed, expressed his satisfaction with the situation regarding this dossier. The balance of power has not changed and we intend to hold onto the blocking minority, he said, adding that he was counting on the United Kingdom, which will determine its position over the forthcoming semester. When asked by EUROPE about Poland's vision of a possible compromise, he replied by referring to the issue of the non-application of the implementing directive of 2014 by some ten member states (see EUROPE 11630). For as long as this situation continues and we get nothing back about the implementation of this last directive, there is no need to revise the directive of 1997, he said.
Among the other speeches made during the meeting, it is worth noting that: Sweden stressed the importance of equal pay between local and posted workers; Finland spoke of the need to find a solution regarding the relationship between the revision of the directive and the 'Rome I' regulation and that this must be compatible with the case-law of the Court of Justice of the EU; above all, Ireland wants clear measures that are simple to apply; Portugal is in favour of a revision, as long as it does not create new problems.
Closing the debate, the Commissioner for Employment, Marianne Thyssen, took pains to stress that despite everything, the Slovak Presidency had succeeded in moving the debate forward, a point also stressed by the vast majority of the delegations. Of the five most important questions raised by this revision, a compromise has been reached on two of them. Everyone can agree that pay should be determined on the basis of the collective-bargaining agreements in general application in all economic sectors (Parliament's rapporteurs want the regional and sectoral agreements also to be taken into consideration) and that the same rules should apply to cross-border temporary employment agencies. The precise definition of the concept of pay, determining the maximum period of a posting and the issue of sub-contracting still need to be discussed at technical level, although a political decision will probably be required in order to reach a solution, the Commissioner observed. (Original version in French by Jan Kordys)