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After no small effort, the member states' employment and social affairs ministers succeeded, on 9 December, in adopting a general approach on provisions for implementing the directive on the posting of workers. They succeeded despite the negative votes by the United Kingdom, Hungary, the Czech Republic, Latvia, Estonia, Slovakia and Malta.

The regulatory measures under discussion aim to improve implementation, monitoring and enforcement of minimum working conditions for posted workers (set out in Directive 96/71/EC) and to halt abuse. They provide a framework for the situations where a worker provides a service, on behalf of his employer and for a limited period, in a member state other than the one in which he usually works. In 2011, the countries that hosted the largest number of posted workers were Germany (311,361), France (161,954) and Belgium (125,107). Those posting the most workers were Poland (227,930), Germany (226,850) and France (144,256).

The final text, negotiated for more than seven hours, is built on a Franco-German compromise. With respect to the monitoring measures that states can impose (Article 9), it provides for an open list that can be completed by member states, after being notified to the European Commission. On the principle of joint and several liability (Article 12), the other stumbling block, the text gives member states more flexibility than what was proposed in the Franco-German compromise. The agreement imposes in the construction and public works sector a system of mandatory joint liability on the main contractor with its subcontractors, with no application threshold. To ensure the backing of a qualified majority, however, the compromise offers an alternative: in the absence of a system of mandatory liability, member states may take "appropriate implementing measures, in line with national legislation and/or practices, authorising within a direct subcontracting relationship effective and proportionate sanctions against the contractor in order to combat fraud and abuse". In both cases, member states may adopt more stringent rules.

It was the change of position by Poland - initially in favour of a closed list of monitoring measures and voluntary joint liability - that scuppered the blocking minority. "We are not completely pleased with this text, but it was the least objectionable scenario," explained a Polish diplomat. He noted that Poland - the country with the largest number of posted workers - obtained reassuring guarantees: on Article 9, the review of new measures by the Commission, and on Article 12, the possibility to use a system of sanctions rather than joint and several liability. He added that other scenarios less favourable to Poland were on the table, in particular the proposals by the UK delegation. The diplomat added that Poland considered early agreement on the proposal a priority, notably due to the EP election and renewal of the Commission next year, as well as the change of Council Presidency as of 1 January.

Now that this long-awaited position has been adopted, the co-legislators will be able to start three-way talks without further delay. Both the EU Council Presidency and the European Parliament's rapporteur (Poland's Danuta Jazlowiecka, EPP) hope to work out an agreement before the European elections in May 2014. The EP's Committee on Employment and Social Affairs (EMPL) called, in June, for an open list of monitoring measures and the principle of joint liability in all sectors and throughout the subcontracting chain. The vote was nevertheless very close, 22 to 18, with six abstentions.


The European Parliament, keen on starting negotiations, immediately applaued the Council's agreement. The Socialists, like EP President Martin Schulz, nevertheless made a point of saying they would have preferred a comprehensive revision of the text rather than a directive to implement rules from 1996. The business world voiced a mixed reaction to joint and several liability. For BusinessEurope, representing private sector employers, this principle will be costly. "We consequently welcome that state governments will be able to use other appropriate measures to tackle abuse," commented the association's Director-General, Markus J Beyrer. The European Builders Confederation, representing SMEs in the construction sector, is concerned that this liability may become a business-to-business problem or that SMEs might have to take up a policing or inspecting role. The organisation notes that it would have liked to see the establishment of a public database of information on subcontractors' compliance with the host country's social legislation. Workers' representatives, namely the European Trade Union Confederation (ETUC), regretted the absence of mandatory joint liability in all sectors.

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The proposal, presented in March 2012, strengthens implementation and enforcement of Directive 96/71/EC without touching the core protective measures. It clarifies the role of the member state where the work is performed and sets out general principles for effective administrative cooperation and assistance. The text facilitates the cross-border application of fines and administrative sanctions. It requires member states to publish on a website the working and employment conditions and/or national measures (national and/or regional) applying to posted workers on their territory. Lastly, the proposal introduces the principle of joint and several liability to guarantee that subcontractors in the construction sector comply fully with their legal and contractual obligations.
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Publication:European Report
Geographic Code:4EXPO
Date:Dec 11, 2013

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