Full text - European Trade Union Institute (ETUI)

Isabelle Schömann and Carolie Guedes
the stubborn opposition of a minority of Member State governments prevented
progress in this crucial area.
In May 2004, ten more Member States joined the European Union; this major
event in the construction of the EU certainly did not facilitate the task of
the Council. One of the main stumbling blocks was once again the principle
of equal treatment. Three derogations from the principle were proposed: the
Nordic derogation, the German derogation and the British derogation, as they
have been called (Vaes and Vandenbrande 2009).
The first derogation consisted of a possibility for national social partners to
derogate from the principle of equal treatment through collective bargaining.
Nordic countries – and in particular Sweden and Denmark, where working
conditions are mostly regulated by collective agreement – did not want their
bargaining power reduced by the adoption of the Directive (Vaes and Vandenbrande
2009). It is true that, from the point of view of countries that have
a strong tradition of regulating employment through collective bargaining,
this exception makes sense. But it contains a risk for countries in which trade
unions’ or worker representatives’ bargaining power is weak.
The so-called German derogation provided that, with regard to pay, Member
States, after consulting the social partners, may allow exemptions from
the principle of equal treatment for workers with a permanent contract of
employment with a temporary work agency. Whether to include temporary
agency workers with a permanent employment contract in the scope of the
Directive or not had been a key issue during the bargaining process between
the European social partners. The proposed derogation seemed to be a halfway
solution.
Finally, the British derogation provided the possibility of implementing a
qualifying period. The risk contained in this derogation is that in most European
countries temporary agency work is essentially temporary and the duration
of assignments is fairly short. Providing a long qualifying period would
thus exclude most workers from the scope of the Directive.
Despite the fact that a compromise seemed to have been reached on the principle
of equal treatment (the principle itself and the comparable worker), a
fundamental disagreement remained. Member States did not agree on the
aim of the Directive: some wanted to put the emphasis on labour market flexibility,
while others wanted to put it on the protection of temporary agency
workers (Vaes and Vandenbrande 2009).
In 2007, during the Portuguese Presidency, greater efforts were made to
reach an agreement (Vaes and Vandenbrande 2009). Moreover, most Member
States were actually in favour of the Presidency text and their number would
probably achieve a qualified majority. Thus, the Employment, Social Policy,
Health and Consumers Affairs Council was ready to put the matter to a vote,
as unanimity was not required (EIRO, January 2008). Furthermore, on 28
May 2008, the European social partners for the temporary agency work sec-
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