EU member states’ ministers for social affairs will decide on their position on major issues at the Employment and Social Policy Council (EPSCO) on Monday 23 October, including the highly controversial revision of the directive on worker secondment. The adoption of European social rights and a ‘partial’ agreement on the regulation on coordinating social security are also expected.
We understand that agreement on European social rights was reached at the Committee of Permanent Representatives on Friday 20 October. The rights will be proclaimed without debate at the EPSCO on Monday, explains a diplomatic source. This will enable heads of state to adopt the proclamation at the Gothenburg Social Summit on 17 November. Although they do not have any real problem with the interinstitutional proclamation, a number of member states, headed by Hungary, expressed concern about the status of the text, fearing that it will form legally binding obligations on the member states.
The Estonian Presidency of the Council started by clarifying the legal status of the proclamation, which will not be binding in and of itself and hence will require ‘appropriate’ measures to make it so. Secondly, the presidency clarified the strengthening of the role of the social partners to better adjust to the specifics of the individual member states. The Estonian Presidency has only changed recitals rather than the actual principles presented by the European Commission (see EUROPE 11828). A diplomatic source said this was good news because it would leave more time for negotiating the directive on seconded workers.
Battle of wills over seconded worker directive. The Committee of Permanent Representatives (COREPER) did not manage on 11 October to reach a compromise on the directive (see EUROPE 11881) due to three stumbling blocks such as the maximum duration of secondment of a worker, the time for transposing the directive and the recital stipulating a lex specialis for international road transport. The divisions are more complex than a simple West-East split and the balance of power varies vary from issue to issue.
On the question of the duration of long-term secondments, many delegations, headed by the Višegrad Group (Poland, Hungary, Slovakia and the Czech Republic) feel that a maximum duration of 24 months is a blanked compromise. Here, France and Germany, the Benelux and Austria want a 12-month maximum. The Estonian Presidency of the Council of the EU will propose 24 months. Our sources say that despite media attention, the duration question will not be the trickiest issue politically since the average secondment lasts between three and five months.
As for the transposition into national law, views diverge on the duration of the transposition period from two to five years. In its most recent compromise document, the Estonian Presidency has put in brackets a three-year period, two years for transposition and a year for transition. Employment and Social Affairs Commissioner Marianne Thyssen told a group of reporters on Friday 20 October that she herself felt that it would be better to go with the shorter period.
The great unknown is the question of recital 10 on international road transport. Some delegations, including the Visegrad group, Spain, Portugal, Ireland and the Baltic States (bar Estonia) would like to keep the recital, which lays down a lex specialis. Poland, our sources say, takes a strong line and would rather not have an agreement on this point than a bad agreement. Other countries want it to be scrapped, France and the member states that back its proposals amendments unveiled earlier in the year, for example (see EUROPE 11800). A diplomatic source told us on Friday morning that a vetoing minority against the Franco-German proposal was still on the cards, but the situation is reported to have evolved during the European Summit.
Talks and negotiations at the European Summit. During the European Summit on Thursday 19 October, the French president, Emmanuel Macron, spoke with the Spanish PM, Mariano Rajoy, for 45 minutes on seconded workers and the recital on transport. No information has come our way about this. A French presidential source said she was ‘confident’ however. A point of view reportedly shared by the Polish PM, Beata Szydło, according to another source, who is reported to have said at a press conference that there was good hope of reaching agreement on Monday as negotiations would take place on the fringe of the European Summit to move forward on this issue.
The question of tackling fraud and abuses is also due to be discussed by the ministers. Their lunch will focus on cross-border money-laundering.
Regulation on coordinating social security. In connection with the seconded worker directive, a partial general approach is likely to be found on the regulation on coordinating social security (Regulation 883/2004), which is due to cover the chapter on access to social security for people who are not economically active and issues relating to worker secondment. The period of prior membership of social security systems by workers to be seconded is expected to be decided upon. Portugal circulated a memo about the three-month prior membership not applying only to the 60% of individuals sent by an employer, an idea that raises a number of questions about feasibility. Some delegations asked for the membership period to be reduced to one or two months, while others, such as France, want it extended to three months.
Marianne Thyssen expects long talks on Monday. During a briefing with a group of reporters, Commissioner Thyssen said she would be happy if the ESPCO Council could reach consensus on European social rights (which will happen), a breakthrough on the seconded worker directive and progress on the regulation coordinating social security systems. In response to question from this newsletter, the Commissioner said she had reserved a hotel for Monday to Tuesday night, expecting (like some delegations) long drawn-out talks on the seconded worker directive and hinting, she said, at a genuine desire to find a solution. The way she sees it, the Estonian Presidency’s proposal made it possible to clarify a number of areas of vaguery in the Maltese Presidency’s proposal, a proposal she said was ‘acceptable.’ The commissioner says it is important to validate the principle of equal treatment for equal work at the same workplace from the very start. Thyssen said she was optimistic and felt it would be possible to ‘creatively’ overcome all areas of deadlock. (Original version in French by Pascal Hansens and editors)