Late on Monday evening 23 October, EU employment and social affairs ministers managed to snatch a painfully obtained general approach on the posted workers directive. The differences are many with the European Parliament report approved in the employment and social affairs (EMPL) committee and submitted to the plenary session in Strasbourg this week.
The Council agreement was reached in the evening with a solid majority among the delegations (see EUROPE 11889). Nonetheless, Poland, Hungary, Latvia and Lithuania voted against and the United Kingdom, Ireland and Croatia abstained. Romania, Bulgaria, Slovenia and Slovakia, as well as the Czech Republic, which are, nonetheless, members of the Visegrad Group, supported the agreement, although their support had not been certain beforehand, and neither had the support from Spain.
Three main points were blocking the delegations: the maximum period for workers’ postings, the duration of transposition and implementation of the directive and, finally, the mention of a Lex Specialis for international road transport (see EUROPE 11888).
Influence from France and its allies (Benelux, Germany, Austria and, to a lesser extent, Italy) was most visible on the question of the maximum length of posting, which gradually shifted from 24 to 12 months, with companies being able to issue notification to the competent authorities of the host member state to request a maximum posting extension of six months. This last proposal was put together by the Romanian delegation.
Transposition and implementation of the directive are now very different from the Franco-German position (which proposed two years), since the final agreement includes a three-year transposition period and a one-year implementation period, in other words, a four-year period altogether.
On the question of Recital 10, which includes a specific law for international road transport, France and its allies had to give ground. At the end of the talks, the delegations agreed on the posted workers directive in its 1996 form. They also agreed that the law applicable at national level applies to the international road transport sector until the dedicated mobility directive enters into force.
In the context of the fight against fraud and abuses committed in connection with posted workers, member states agreed on reconsidering the platform to fight against undeclared work, implemented in 2016 and included in the 2014 implementing directive. One parliamentary source informed EUROPE a few days ago that this platform consisted of a meeting of national experts every two years but that it did not have any binding powers.
Other important points that have received less media attention are that, according to several diplomatic sources, the general approach does not include subcontracting companies, which have been excluded from the directive’s scope, and only universal collective agreements or those regarding general application, are provided for in the text adopted at the Council.
The main differences with the European Parliament
At the European Parliament, the agreement was greeted sometimes warmly – as it was by co-rapporteur Elisabeth Morin-Chartier (EPP, France), who saw it as an example of being able to overcome east-west divisions – and sometimes coolly – as it was by Terry Reintke (Greens/EFA, Germany), who described the agreement at the Council as a step backwards compared with the European Commission proposal. There are indeed many differences if the Council position is compared to that of the European Parliament that was adopted in committee last week (see EUROPE 11885, 11884).
First and foremost, in contrast to the European Parliament, the member states did not propose extending the legal basis in Article 153 of the Treaty on the Functioning of the European Union. During a press conference at the end of the Council, European Commissioner for Employment and Social Affairs Marianne Thyssen again repeated how she disagrees with the proposal from the MEPs. The European Parliament did not exclude subcontracting companies, to which the directive applies when national legislation is in place. Another difference between the two institutions is that MEPs introduced a possibility for applying non-universal collective agreements to posted workers.
With regard to the positions with the highest media exposure, the European Parliament called for a maximum 24-month period of posting over the long-term (with the possibility of an extension), whereas the Council proposed 12 months, with a possible extension to 18 months. On the question of transposing the directive, the European Parliament called for two years – in other words, half as long as the Council was calling for.
The point, however, that will be the subject of most debates between the two institutions will still be that of international road transport. In its Recital 10, the European Parliament provides for the posted workers directive in its revised form to apply to the international road transport sector, when member states agree on applying the provisions of the 1996 directive, and not the future arrangements of the directive. This is therefore a major difference.
Businesses and unions disappointed by Council agreement. The European Trade Union Confederation (ETUC) did not conceal its disappointment following the agreement reached between member states, and regretted that road transport is not included in the directive. It was also disappointed by the safeguards regarding compensation payments, the fact that there is no extension of the legal basis, non-collective universal agreements and the length transposition of the directive, which it considers too long. According to the unions, the only consolation is that there had been an agreement.
The business community was much harsher. BusinessEurope simply declared that is involved a “poor compromise” erected on “political symbolism” to the disadvantage of the free movement of workers and of the real fight against abuses committed within the current framework of rules. The organisation drove the message home even further by declaring that “the Council has given credit to the myth that existing rules require change in order to tackle social dumping”. The organisation regrets the maximum posting period being reduced to 12 months. In the view of Business Europe, this is an inadequate measure and will only have an impact on long-term postings where fraud and abuses are the most infrequent. Business Europe therefore calls for greater compliance with the European Parliament position during the inter-institutional dialogues, which look as if they are going to be particularly fraught.
Mobility directive is future battlefield. The mobility directive presented on 31 May was on everyone’s lips during the talks between member states. According to several sources close to the issue, the agreement reached by the national delegations hails negotiations that will be particularly hard going and difficult on the mobility directive, with certain member states (particularly those in Eastern Europe, as well as those in the south and on the periphery) taking it to task. (Original version in French by Pascal Hansens)