It was late into the night sometime between Wednesday 6 and early on Thursday 7 February, and after a lengthy struggle, that the European Parliament and the Council of the European Union reached an agreement on the ‘working conditions’ directive, an agreement that was less ambitious than the initial proposal and rather different from the European Parliament’s position defended by the rapporteur, Enrique Calvet Chambon (ALDE, Spain).
"We have just reached a provisional political agreement on more transparent and predictable working conditions for the benefit of 200 million workers in Europe", welcomed Employment and Social Affairs Commissioner Marianne Thyssen in a tweet at around 3:15 in the morning. "I believe that we have achieved the best possible deal and that the more vulnerable workers will benefit from a European minimum protection framework", commented the rapporteur, simply adding that this was "a big step forward" for "Social Europe".
However, this optimism was not evident in the rapporteur a few days before the deal. Commenting on a bulletin article (see EUROPE 12185) on the network, he explained that "the dossier [was] very far from the deal".
In the end, there was agreement, but as proof of its distance from the European Parliament's position, the German shadow rapporteur, Denis Radtke (EPP), who was openly opposed to the report voted on in the European Parliament (see EUROPE 12137, 12136), said he wanted to support the interinstitutional agreement internally. In contrast, European Parliament shadow rapporteur Tamás Meszerics (Greens/EFA, Hungary) is now reportedly opposed to the agreement reached, despite having supported the text in the parliamentary committee. The Social Democrat rapporteur, Javi López (Spain), would support the agreement.
At this last meeting, two main negotiating points remained on the table (see EUROPE 12185): the scope of the directive, in particular the definition of the term 'worker', and the hourly threshold worked per month in order for the directive to apply.
As far as the scope is concerned, the co-legislators have finally aligned themselves with the approach found for the Directive on work-life balance. The definition of 'worker' will be left to the Member States’ discretion, but always within the precedent of the European Court of Justice (ECJ). As a reminder, the European Parliament originally wanted to decide upon a definition regarding contractual characteristics at European level.
As for the application threshold, a compromise was finally reached between the flexibilities put forward by the European Parliament (8 hours per month, which excludes 1 million workers from the scope of the directive, according to an internal study carried out by the Commission) and the Council's revised position (16 hours per month, meaning 2.5 million workers are excluded): it will ultimately be 12 hours per month.
Essential written information (name of the parties, place of work, work specification, start of the contract, duration, etc.) must be provided between the first day of the performance of the contract and the first seven working days - a half-hearted victory for the European Parliament, which wanted all essential information to be provided from the very first day. But it’s real progress if we compare these terms to the current situation, which sets a maximum deadline of 2 months.
As for the probationary period, it was set at a maximum of 6 months, with the possibility of derogating in exceptional cases, in particular for officials. In the case of fixed-term contracts, the probationary period must be "proportional". It will be up to the Member States’ judges to define what is proportional and what is not. Here, the European Parliament wanted a rate of 25% over the total period of the fixed-term contract. This was considered too restrictive by the Council.
Many public service bodies (police, military, emergency services, etc.) may be exempt from Chapter III on the minimum requirements concerning working conditions, provided that the European Commission is informed of the explanation and they approve it. Similarly, seafarers will not be subject to certain paragraphs of Chapter III.
A major source of satisfaction for the rapporteur is that on-demand workers now have a "right to predictability", with a compensation mechanism in the event of last-minute cancellation by the employer.
The transposition period for the directive has been extended to three years instead of the two years initially provided for by the European Commission.
An unwavering Council, a turbulent Commission. The Council adopted its position in the Committee of Permanent Representatives on the same day and reportedly "tore up the directive", with the Romanian Presidency obtaining everything it had promised to the ambassadors that very same day, according to one source. Moreover, according to the same source, the Commission and Commissioner Thyssen herself have in the past chosen more of a "middle" ground, unlike in this trilogue. (Original version in French by Pascal Hansens)