Advocate General Campos Sánchez-Bordona, in his Opinion delivered on Thursday 28 May, called on the Court of Justice of the European Union to dismiss in full the actions for annulment in whole or in part brought by Hungary (Case C-620/18) and Poland (Case C-626/18) against the Directive strengthening posted workers’ rights.
According to him, due to the development of the EU employment markets following the consecutive enlargements and the 2008 financial crisis, the EU legislation was entitled to carry out a reassessment of the interests of undertakings benefiting from the freedom to provide services and the interests of their posted workers.
In 2018, the EU legislature adopted Directive 2018/957 amending Directive 96/71 on the posting of workers with the aim of ensuring greater protection of workers, in particular their remuneration and social and employment rights (see EUROPE 12046/37).
However, for Hungary and Poland, the Directive had not been adopted on the appropriate legal basis and/or is contrary to several European regulations, in particular on remuneration, freedom to provide services or its application to the road sector (see EUROPE 12110/8).
In his Opinion, the Advocate General considers that the Directive was adopted on an appropriate legal basis.
He also specifies that its role is limited to coordinating the application of the employment legislation of the host State and State of origin, and does not, under any circumstances, set the level of wages to be paid, which comes within the competence of the Member States.
Moreover, according to Mr Sánchez-Bordona, by adopting that Directive, the EU legislature has complied with the requirements of the principle of proportionality without manifestly exceeding its broad discretion in the area of regulating the transnational posting of workers.
Furthermore, he says the regulation of long-term posted workers (12 or 18 months) introduced by the amending directive is justified and involves restrictions that are proportionate to the freedom to provide services, inasmuch as it is consistent with the situation of workers whose integration into the labour market of the host State is greater.
Lastly, the Advocate General observes that the amending directive does not contain any substantive rules governing the posting of workers in the transport sector, and that it will apply to that sector only when a legislative act to that end is adopted in the future. He therefore rejects Hungary’s argument that the reference to that future legislative act in the directive constitutes, in itself, an infringement of the provision of the TFEU relating to the application of the principle of the free movement of services in the transport sector.
See Advocate General’s Opinion (in French): https://bit.ly/2ZJ4NfH (Original version in French by Camille-Cerise Gessant)