White smoke or almost. The co-legislators can now see light at the end of the tunnel with regard to the revision of the directive governing posted workers. This follows a political agreement having been reached late in the night of 28 February-1 March. This is an informal agreement and will still need to be formally endorsed by the Council and European Parliament.
The provisional agreement was negotiated by four women: the co-rapporteurs Élisabeth Morin-Chartier (EPP, France) and Agnes Jongerius (S&D, Netherlands) on behalf of the European Parliament; Marianne Thyssen, the Commissioner for Employment and Social Affairs, and Zornitsa Roussinova, the Deputy Bulgarian Minister for Social Policy and Employment on behalf of the Bulgarian Presidency of the Council of the EU.
Addressing the press, the four negotiators emphasised that the agreement made the overriding principle of "equal work, equal pay and equal treatment”, a factor the European Commission wanted to include in the legislative review. According to the negotiators, the agreement also ensures protection for posted workers as from the first day and reduces the legal uncertainties for both workers and entrepreneurs.
Roussinova’s country, Bulgaria, is due to argue in favour of the text at the Committee of Permanent Representatives to the European Union (Coreper). She explained that the major components of the political agreement (general approach) at the Employment and Social Affairs Council in October 2017 (see EUROPE 11890) had been maintained: maximum duration of posting and the Lex Specialis for international road transport.
Ms Morin-Chartier stated, "We did try and do our best to ensure that it was a win-win agreement”. She also added that, “We are not claiming it as a victory. It is a common approach and we still have a number of stages to complete. The approach we developed tonight… still has to be confirmed by the other institutions”.
Several provisional agreements have already been reported on in our publication (see EUROPE 11964, 11957).
It’s tails for the European Parliament and it obtains some major victories
The European Parliament managed to win its case on non-universal collective agreements, reimbursement allowances, the two year duration of the transposition period and the directive covering workers’ inappropriate postings.
One important aspect of the compromise is the fact that as well as daily allowances, it also includes reimbursement allowances for accommodation, food and transport on the basis of the modalities of the host member state. Nonetheless, the modalities of the posted worker’s country of origin will apply to “cross-border" payment costs, for example, for transport as part of a posting from country A to country B.
As well as the universal collective agreements, the victory in Parliament also includes the non-universal collective agreements, namely, sectoral, local and regional collective agreements. Company agreements, however, have not been taken into account, to the great disappointment of the Greens.
On the question of inappropriate workers’ postings, such as those outside the legal criteria as included in the implementing directive adopted in 2014 (directive 2014/67/EU) (see EUROPE 11062), the Parliament succeeded in ensuring that they enjoyed the same protection as other posted workers. This point was particularly welcomed by Terry Reintke (Greens/EFA, Germany) the shadow rapporteur for the Greens.
Parliament also won its argument on the transposition duration of the directive, which will ultimately be two years, whereas the Council had envisaged a four year period. Implementation, however, will only be effective once the date of the transposition has expired.
This is to help prevent any possible distortions in the internal market and is a relatively common provision for legislative dossiers in the internal market, explained one source.
It’s heads for the Council and some major victories for it too
The Council scored a number of points, particularly on the separate treatment for workers in international road transport (Lex Specialis). As long as the "mobility package” (see EUROPE 11799) is not adopted, there is a risk of losing time, given the divisions at the Council (see EUROPE 11919) and the 1996 version of the posted workers directive (directive 96/71/EC) will therefore apply.
This is bad news for one European observer who sees it as an example of a “two speed" protection for posted workers. Nonetheless, the Parliament managed to obtain a five-year revision clause after the entry into force of the directive.
Another source of satisfaction to the member states, particularly France, includes the fact that the maximum period of postings will be 12 months with the possibility of a six-month extension backed up by an explanatory request in accordance with the suggestion by the Romanian delegation last October (see EUROPE 11890).
In this regard, Parliament did not win its argument although it proposed a similar system that would have been up to 24 months (12 months + 6 months + 6 months).
On the question of posted workers covered by subcontracting contracts, the situation remains the same. The posted workers concerned will be covered by the directive but will not be able to benefit from the supplementary agreements in relation to the other posted workers, particularly those who are included in company agreements.
It is true that the Council position appeared impregnable according to several sources. One of them pointed out that the provision introduced by the Commission had been “torpedoed" under the Maltese Presidency at the beginning of 2017, with around 25 member states opposed. In this connection the co-legislators agreed on introducing a five-year revision clause after the entry into force of the directive.
Finally, the extension of the legal base to article 153 of the TFEU to provide a social dimension to the text, as sought by the Parliament, was abandoned. Neither the Council nor the European Commission supported it.
Nonetheless, Parliament did succeed in including within the first article on the subject of the directive, the necessity of the text respecting fundamental rights and thereby including the point in the first article as planned under the implementing directive of 2014.
The informal agreement will be examined by the National Ambassadors to the Committee of Permanent Representatives, Coreper on 14 March, ahead of the employment and Social Affairs Council. According to certain sources, this will be the hardest obstacle to overcome. If the Bulgarian Presidency obtains a new revised mandate, then another inter-institutional meeting (trialogue) could take place on Monday 19 March. Three trialogues with then be planned, particularly with regard to negotiating the different clauses. The European Parliament is hoping that there will be vote at the June plenary session, which will still be under the Bulgarian Presidency. (Original version in French by Pascal Hansens)