Full text - European Trade Union Institute (ETUI)

Isabelle Schömann and Coralie Guedes
by all national and foreign undertakings in the same region or sector (ETUC
2012). 8 As a consequence, host Member States can apply higher or different
standards by law, relying on Article 3.1 but it must be justified on a case by
case basis (according to CJEU C-319/06 Commission vs Luxembourg). In the
same vein, trade unions in the host Member State can take action to demand
better standards by way of collective agreements, in particular to prevent ‘social
dumping’ and promote fair competition between local and foreign service
providers, without infringing Article 56 of the new Treaty on the Functioning
of the EU, TFEU (49 EC Treaty), that is, without creating obstacles to the free
movement of services, as long as it is justified by reasons of overriding public
interest (see CJEU Rüffert C-319/06 and Laval C-341/06). According to the
Treaty, however, directives set out minimum requirements for the protection
of workers, in other words, the core of rights that must be applied, given the
possibility for Member States to provide the workers concerned with more favourable
conditions based on domestic legal or collectively agreed standards.
In particular, member states in their role of public authorities contracting out
public work should be allowed to demand observance of locally applicable collective
wages and working conditions by any company, local or foreign, tendering
for the contract.
In December 1996, the European Parliament and the Council adopted Directive
96/71/EC concerning the posting of workers within the framework of
the provision of services, usually called the ‘Posting of Workers Directive’.
The aim of the Posting of Workers Directive is to guarantee that the rights
and working conditions of a posted worker are protected throughout the European
Union. In this respect, it also intends to prevent ‘social dumping’ in
situations where foreign service providers weaken local service providers by
providing lower labour standards. For this purpose, the Posting of Workers
Directive ensures all posted workers core protections, whatever the law applicable
to the employment relationship, when they perform their job in another
member state within the framework of the provision of services. The core protections
cover various areas of labour law, such as maximum work periods
and minimum rest periods, minimum paid annual holidays, or health, safety
and hygiene at work. The basic assumption is therefore that the law applicable
to an employment contract, which is normally country of origin law,
does not change during the posting because of the temporary character of the
posting. Specific mechanisms are therefore necessary to ensure that the same
rules apply to foreign and host country employers/companies, at least when
it comes to key issues that have a strong influence on the competitive (dis)
advantages of companies and the protection of workers (wages and working
conditions). Second, it is necessary to ensure that this situation is not abused
or manipulated to avoid or evade host country rules.
The Posting Directive intends therefore to regulate whether and under what
conditions the host country rules regarding wages and working conditions
(laid down in law or collective agreement) overrule the possible law and other
8. See: http://www.etuc.org/a/7044
56 WP 2012.13