Brussels, 13/06/2007 (Agence Europe) - On Wednesday 13 June, the European Commission adopted its communication “Posting of workers in the framework of the provision of services: achieving full benefits and potential” and its annex (see EUROPE 9439). The Commission stresses in these two documents that it does not want to question the various social models found within member states, or the way in which member states organise their systems of labour relations and collective bargaining, and certainly not the need for preventive measures and appropriate sanctions to tackle illegal and undeclared work, including “disguised” freelance work or the need to combat the illegal activities of non-existent foreign temporary work agencies. The Commission says that many member states have taken measures to monitor posted workers which are not in line with Article 49 of the EC Treaty (which guarantees the free provision of services) and carries out a case-by-case evaluation, to challenge the member states whose measures, it feels, are disproportionate (for example, the requirement for a permanent representative in the territory of the host country to negotiate collective bargaining agreements or the availability of all social documents under the form normally required for domestic undertakings). It also states that several member states are not respecting the jurisprudence of the Court of Justice on measures applicable to posted workers who are third country nationals and who are residing legally or are legally employed in another member state.
The Commission has announced that it will begin infringement procedures against these countries before the end of the year to ensure compliance with Community law. The Commission is also awaiting further information from some member states to clarify the findings of its consultations with the social partners, so that it can assess how well control measures are being applied (this is not about complaints, so there are as yet no plans for infringement procedures) finally, the Commission proposes to strengthen administrative cooperation between member states through the promotion of the Internal Market Information System (IMI) and setting up a high-level group to help member states with the exchange of best practice.
In the document adopted today, the Commission noted:
A) the following inconsistencies with Article 49 of the EC Treaty on administrative requirements: (1) the need for a representative domiciled in the territory of the host country, in Germany, Estonia, Greece, Luxemburg, Latvia, Austria, Finland, and Sweden - the Commission is awaiting further information from France; (2) the requirement to obtain prior authorisation from the host member state or to be registered there, in Malta and Luxemburg; (3) the requirement for a service provider to make a declaration prior to beginning work, in Belgium, Germany, Greece, Spain, France, Cyprus, Latvia, Lithuania, Luxemburg, Hungary, Malta, Austria, Portugal, Slovenia, Slovakia and Finland - the Czech Republic imposes this requirement on the service user; (4) the requirement to keep and maintain social documents on the territory of the host country and/or under the conditions which apply in its territory, in Belgium, Germany, Estonia, Greece, Spain, France, Italy, Luxemburg, Malta, Austria, Portugal, Slovakia, Finland and Sweden - Lithuania has to provide additional information;
B) the following did not respect the jurisprudence of the Court of Justice with regard to measures applied to posted workers who are third country nationals: Belgium, Denmark, Germany, Estonia, Ireland, Ireland, Cyprus, Latvia, Luxemburg, Malta, the Netherlands, Austria, Portugal, Slovakia and Finland - further information is awaited from France, Italy and Sweden. The Commission adds that the Court has delivered judgments against Belgium, Germany and Luxemburg and that an infringement procedure has been opened against Italy.
Two member states, the United Kingdom and Ireland, which immediately opened their labour markets to workers from the ten new EU member states, with no transition period, had had no problems with posted workers. Commissioner Vladimir Spidla said that this was the correct thing, since “the states most open to free movement do not carry on this type of discussion. That does not mean, however, that they do not experience some small control problems”. He went on to say that it was the control method that posed the problem.
The documents are available at: http: //ec.europa.eu/employment_social/news/2007/jun/communication_en.pdf and http: //ec.europa.eu/employment_social/news/2007/jun/annex_en.pdf (gb)