It would appear that the meeting of the Committee of Permanent Representatives (COREPER) on Wednesday 11 October did not manage to obtain any political compromises on the maximum duration for long term postings within the period set out for transposing the directive. It also failed to reach a compromise on the question of international road transport. The latter is therefore likely to be tackled at the Employment and Social Policy Council (EPSCO) on 23 October next.
These are the three main questions that have not been resolved at a technical level, including: the maximum duration of long-term postings. In this connection, the Estonian Presidency suggested 24 months between brackets; the duration for transposing the directive. The Presidency had proposed three years; the question is of whether or not to include international road transport.
The delegations have continued to stick to their respective positions, which have not allowed for a political agreement to be reached at a level of COREPER. Diplomatic debates will continue until the Employment and Social Policy Council on 23 October next. We have been informed that one thing is, however, certain: the question of clause 10 on international road transport appears to be blocked and will have to be tackled by ministers within the framework of the Council.
Progress has been achieved on the clarification of remuneration, however. In this regard, EUROPE was able to consult the proposals from the Estonian Presidency of the Council with the EU dated 25 September 2017, ahead of the working groups on social questions on 29 September 2017. Within the clauses on the question of remuneration, the Estonian Presidency proposes remuneration in its totality and not the constituent elements of remuneration taken individually – for the posted worker to be taken into account in order to compare it to the remuneration in force in the host member state. The Estonian Presidency is proposing that payments apply but only to cover the costs that do not relate to the fact that the posted worker is far removed from the member state where he normally works.
The proposal also suggests that when a member state imposes a sanction on a service provider failing to respect the terms and conditions of employment, it also takes into account the availability of information required on the single national website by the member state. The Estonian presidency also suggests using the European cooperation platform to tackle undeclared work, which was put in place by decision 2016/344.
Vote at the committee of the European Parliament on Monday 16 October
Some of these proposals appear to be close to those outlined at the European Parliament. According to several European Parliament sources, as well as the compromise amendments consulted by EUROPE, the rapporteurs and shadow rapporteurs for the text at the employment and social affairs (EMPL) committee agreed on a compromise during a meeting last Thursday, as reported by the Bulletin (see EUROPE 11879). Extension of the legal basis did not, however, obtain consensus. As we go to press, only the S&D, EPP and Greens have indicated that they support all of the compromise amendments. The European political groups are expected to make their positions known on Wednesday evening at the latest.
In substance, the main compromises are as follows. The duration of long-term postings would be set at 24 months, after which, the worker would be covered by the national legislation of the host member state, unless a contract is terminated and it would then be the national legislation of the issuing state that would apply. In cases involving replacement, the duration would not be modified given that the text is based on the terms of the mission of posting and not the person. The possibility of deferring the posting duration is, however, possible but only with the agreement of the host member state.
With regard to remuneration, the compromise reached covers the minimum wage, as well as “bonuses” existing for national workers of the host country according to the collective agreements (for example, the 13th month, night work bonuses, etc.). MEPs also agreed to include within it payments, such as those for accommodation and transport. With regard to collective agreements, MEPs considered including non-universal collective agreements. In this regard, the only collective agreements applicable would be those that had been subject to prior registration, in an effort to obtain greater transparency, on the single national website of each member state.
With regard to subcontracting, the directive would only be subject to compulsory application by member states that also have national legislation that covers subcontracting companies.
The rapporteurs also agreed on stepping up cooperation between member states by way of the “exchange platform” included in the 2014 implementing directive, which envisages an electronic information exchange system that facilitates administrative cooperation. The extension of the legal base to article 153 is also maintained, as well as clause 10, which specifies that international road transport is the subject of specific sectoral legislation
These compromises do not in any way affect the final result of the vote at the employment and social committee on Monday 16 October. (Original version in French by Pascal Hansens)