Full text - European Trade Union Institute (ETUI)

Isabelle Schömann and Coralie Guedes
signed to implement the Directive on Posting of Workers. After considerable
controversy and an intense debate among EU institutions, academics and
social partners triggered by the CJEU case law, the European Commission
intends ‘without re-opening Directive 96/71/EC (…) to improve, enhance
and reinforce the way in which this Directive is implemented, applied and
enforced in practice across the European Union by establishing a general
common framework of appropriate provisions and measures for better and
more uniform implementation, application and enforcement of the directive,
including measures to prevent any circumvention or abuse of the rules’ (COM
2012). 9
Furthermore, the minimalist approach taken by the European Commission is
further emphasised when opting for an Enforcement Directive instead of the
revision of the Posting of Workers Directive itself. Additionally, according to
the ETUC, the crucial aspect of the principle of equal treatment is not dealt
with so as to secure a proper guarantee for workers and the proposal will not
prevent abuses of workers’ rights, as among other things it does not propose
effective and dissuasive measures to combat fraud and so-called letter-box
companies. In particular, control and monitoring by the Member State of establishment
as well as the proposed national control measures are too restrictive
and not even binding upon Member States.
Furthermore, the Enforcement Directive would clarify that the Posting of
Workers Directives applies without prejudice to more favourable instruments
of Union law: if the Temporary Agency Work Directive provides more favourable
terms and conditions of employment for the worker, then it should apply.
Depending on the circumstances, it may be that the Enforcement Directive is
more favourable to the worker; in the latter case, it should take precedence.
Additionally, cross-border (temporary agency) posted workers’ rights will be
adequately guaranteed only if the proposal for an Enforcement Directive is established
on a dual legal basis, so as to prevent that the Enforcement Directive
is not a purely internal market instrument based solely on Article 53 (1) and
62 TFEU. A social dimension must be included by adding Article 153 TFEU
(social policy). Additionally, posted workers should be protected regardless of
their status or change in status. In this respect, the articulation with the Rome
I regulation and with Temporary Agency Work Directive should be clarified,
as well as the criteria for defining posting (Is the undertaking genuine Are
the workers actually posted). Effective dissuasive measures to combat fraud
and prevent abuses, so as to prevent successive assignments to the same post
and so-called letter-box companies, for example, still need to be elaborated.
Joint and several liability is currently limited to the construction sector and
to direct subcontractor situations and should be extended to any sectors and
should include chain liability. Listed and binding control and monitoring
measures should be under the supervision of the host country with a mechanism
of prior declaration before posting. Finally, the possibility for workers to
9. Directive on the enforcement of Directive 96/71/EC concerning the posting of workers in the
framework of the provision of services 2012/0061 (COD)
60 WP 2012.13